(Source: SBA web-site, U.S. Patent and Trademark Office web-site, U.S. Copyright Office)

As you work to build your company, you are going to build up a certain amount of intellectual property (IP). For use later in patent filings or in protecting yourself in any potential legal proceeding, it is essential that you and those developing IP at your company keep an R&D notebook. Click here for helpful hints for some ideas on how to maintain an R&D notebook.

The three key tools used to protect intellectual property are: Patents, Trademarks, and Copyrights.

Patents, Trademarks and Copyrights are all different types of intellectual property protection. For example, a patent protects an invention while a copyright protects an original artistic or literary work. You need to understand each of these three main protection vehicles to best identify which one suits the needs of business and best protects your intellectual property.

PATENTS:

How To File A Patent Patent Tools and Manuals Frequently Asked Questions On Patents

PATENT Definition: A Patent provides rights of protection for up to 20 years for inventions in three broad categories:

• Utility Patents protect useful processes, machines, articles of manufacture, and compositions of matter. Some examples: fiber optics, computer hardware, medications.
  
  
• Design patents guard the unauthorized use of new, original, and ornamental designs for articles of manufacture. The look of an iMac laptop, a bicycle helmet, the X-Men characters are all protected by design patents. Note: in most cases Design patents have a period of 14 years versus 20 year for most other patents.
  
  
• Plant patents are the way we protect invented or discovered, asexually reproduced plant varieties. Hybrid teas roses, Silver Queen corn, Better Boy tomatoes are all types of plant patent

TRADEMARKS:

How To File For Your Trademark Frequently Asked Questions On Trademarks

TRADEMARK Definition: A Trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

COPYRIGHTS:

How Can I Register My Work For Copyright Protection Frequently Asked Questions On Copyrights

COPYRIGHT Definition: A Copyright © is a form of protection provided to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

OTHER:

TRADE SECRETS:
A trade secret is information that is secret or not generally known in the relevant industry and that gives its owner an advantage over competitors. Trade secret protection exists as long as the information is kept secret or confidential by its owner and is not lawfully and independently obtained by others. Examples of trade secrets include formulas, patterns, methods, programs, techniques, processes, or compilations of information that provide one s business with a competitive advantage. The owner of a trade secret may recover damages resulting from the improper disclosure or use of its trade secret by another.

Trade secrets are not registered like other forms of intellectual property and are not creatures of statutes. Instead, the judicial system of each country determines the requirements for obtaining trade secret protection. Protection for trade secrets is found in the TRIPS Agreement under the heading "Protection of Undisclosed Information" (TRIPS Article 39). Protection of undisclosed test data for marketing approval of pharmaceutical products is particularly sensitive. Some of the factors commonly considered include:

• The extent to which the information is known outside of the business;
  
• The extent to which the information is known by employees and others involved in the trade secret owner s business;
  
• The extent of the measures taken to guard the trade secret;
  
• The value of the information to the owner and his competitors;
  
• The amount of money or effort expended by the trade secret owner in developing the secret; and
  
• The effort required by others to acquire or duplicate (through reverse engineering) the information.

The secrecy of an alleged trade secret is the most important factor to be considered. If the information claimed to be a trade secret is available through any legitimate means and is obtained in this way, then the information is no longer secret and may become ineligible for protection. However, if the owner has taken reasonable steps to protect the information, but the trade secret information nonetheless is publicly disclosed, the courts in many countries may still grant protection. Such reasonable steps may include requiring those persons who encounter the information as the result of normal business ventures to sign confidentiality and nondisclosure agreements.

Costs vs. Benefits

As with all business-related activities, economics plays a large role in determining whether to protect intellectual property. Companies must weigh the potential value of an intellectual property right against both the probability of realizing that value and the costs of securing, enforcing, and maintaining that right. Small start-up operations, typically strapped for cash, must take extra care in determine what to protect and, thus, what to spend money on.

There are no hard and fast rules that determine the potential value of a given intellectual property right. What is valuable to one individual or company may be worthless to another. There are certain obvious factors that contribute to the potential value of the intellectual property, including the potential value of exclusive or other rights, assignments, or licenses, cross-licenses, enforcement against infringers, and as collateral for securing financing.

A trademark or service mark may be a very valuable asset. For example, CitiGroup obtained the red umbrella trademark of Travelers' Insurance when Travelers and CitiBank merged in 1993. The logo had such a strong positive brand recognition, CitiGroup has leveraged that logo into all its commercial and consumer product lines.