Patents, Trademarks, and Copyrights, knowing when to use what and why.
By: sbbarca | Posted: 20th August 2009
Patents, Trademarks, and Copyright all come with their unique strengths and weaknesses. In addition, Patents, Trademarks, and Copyrights all overlap and can all operate a single device or service in many cases. For this reason, it is important to know which one to use and when to use them. It is also important to apply them mindful of their strengths and limitations.
Patent law operates on a strict liability standard. For this reason, Patent Law is the preferred method for getting the most ironclad protection amongst the three intellectual properties. Since patent law is based on strict liability, the law is not concerned whether or not an infringer acted in good faith or whether he or she knew of the existence of that patent right. Indeed, since patent applications are not published for 18 months, unknowing infringers may still be liable nonetheless. Moreover, Patent law is a powerful tool against reverse engineering. Although many people believe that skirting around the claims of a patent is easy by some minor and insignificant tweaking, a well drafted patent application with broad claims and an eye to the competition can force competitors to market inferior products and services.
On balance, the prime area of weakness of patents are the sands of time. Patent applications can take years to navigate their way through the USPTO. What's more, they enjoy shorter terms of duration compared to their counterparts. Patents enjoy protection for only 20 years for devices and processes and 14 years for purely ornamental designs.
By way of contrast, Trademarks are not limited with any time constraints. Trademarks can last forever because so long as they are used continuously, consistently, and properly, they can be passed with the selling of businesses and can be handed down to subsequent generations. For example, the German Beer maker, Lowenbrau has a 600 year old trademark.
Unfortunately, unlike patent law, Trademark law is weakened through fair use factors. What's more, in some cases, the inherent weakness of some trademarks may not be able to create enough distance between the owner and competitors in the marketplace if they are too descriptive.
Similarly, Copyright law also enjoys a relatively long term duration. Copyright protection begins from the time the work is created plus the life of the author, plus an additional 70 years after the death of that author. However, fair use exceptions can weaken the enforceability of Copyrights. Furthermore, as it pertains to software source code and object code, reverse engineering is a huge issue.
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Tags: preferred method, good faith, patent application, patent applications, time constraints, strict liability, inferior products, single device, reverse engineering