Picture this: It’s the first powder day of the season. You’re in the lift line, ready to go, and you overhear the person in line behind you explaining her idea for an improved snowboard binding she’s developing—the exact idea you spent the last year perfecting at your company. Despite the cold, you have to open your jacket vents as you consider the implications, which haunt you all the way down your first run of the year.
Later that morning you’re warming up with a coffee when you spot your company’s brand name on a ski helmet you didn’t make, with a strange logo next to it. Suddenly, the first powder day of the year is feeling pretty slushy. What should you have done? What can you still do?
What Is Intellectual Property?
Both scenarios illustrate the importance of protecting one of the most important assets your company has. But what exactly is intellectual property (IP)? Simply put, IP is the ideas that drive businesses. If you or your company put resources (time, money, blood, sweat, tears) into developing a product or service, chances are you won’t look kindly on copycats. Protect your innovations and your brand name and help advance or secure your position in the industry.
The various tools used to protect your intellectual property—such as patents, trademarks, copyrights, and trade secrets—each have a different purpose and protect different things.
• Patents give you the right to exclude others from practicing your useful inventions, such as Thomas Edison’s revolutionary “Electric-Lamp” (light bulb).
• Trademarks are words, names, symbols, or devices that a business uses to identify its goods and distinguish them from others, such as McDonald’s two golden arches or the name “Google.”
• Copyrights protect original works of authorship, and can apply just as much to a PistenBully owner’s manual as it does to a Hemingway novel or Tom Petty song.
• Trade secrets protect any valuable business information, such as a formula or compilation of information, that is not generally known, is subject to reasonable efforts to maintain its secrecy, and has economic value (think Coca-Cola’s secret recipe).
These are all types of IP, and protecting them has been the life blood of all of these successful enterprises.
How Can You Protect Your Inventions?
When you hear that person in the lift line talking about her idea for an improved snowboard binding that you have already patented, a patent may offer several ways to help you keep her—and any other potential infringers—from harming your business. You could file a lawsuit asking the court to award damages for infringement or prevent an infringer from continuing to make bindings covered by your patent.
But a lawsuit is not the only way to leverage your patent rights. You could also use your patent to generate an income stream by licensing your invention to the infringer or even by offering to sell your patent outright to the competitor. And sometimes, just holding a patent scares potential competitors away from infringing activities out of fear of a lawsuit.
So how do you get a patent on your invention? The U.S. Patent and Trademark Office grants patents only after conducting an examination of your patent application, carried out by a U.S. patent examiner knowledgeable in the relevant technology, to determine if your application meets all the requirements, including that it is novel and non-obvious compared to the existing state of art. A “utility patent” protects the functional or technical aspects of your invention for 20 years from the date you file your patent application. You can also obtain a “design patent” to protect the decorative features of your invention for a period of 15 years.
If you have a secret manufacturing process (e.g., a particular way of making a composite laminate ski core or a high-fluoro ski wax), trade secrets may be a useful way to protect those inventions. Better still, trade secrets never expire as long as they have value and remain a secret.
How Can You Protect Your Brand?
Trademarks and trade dress are a powerful tool to help you protect your company’s name, product names, logo, and even product packaging. Trademarks also make it easier for customers to find you and can make your products stand out in a crowded field.
And like a patent, you can assert trademarks in court to stop infringers. So when you see someone in the lift line wearing a ski helmet with your name or logo on it, having a trademark is vital to stopping the rival company from stealing the goodwill you have built in your brand.
Similar to patents, trademarks also undergo examination by the U.S. Patent and Trademark Office. But unlike patents, trademarks may be protected in perpetuity as long as you continue to use them.
Learn More About How to Use IP
In future posts, we will dive deeper into IP issues including: an overview of the process of obtaining a patent from the U.S. Patent and Trademark Office; using design patents to protect ornamental aspects of your products; how to choose between patent and trade secret protection; licensing and selling patents to generate income; and what to do if someone is using your trademark.
Don’t be the person in the lift line thinking about anything other than how to get the most and best runs possible on that perfect day. Protect your IP in advance and carve the perfect line on this valuable business asset.
–Charles Collins-Chase, Michael Kudravetz, Justin Loffredo, and Ryan Ellis are winter sports enthusiasts and intellectual property attorneys with the law firm Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. They can be reached at firstname.lastname@example.org.