A decade or two ago, the first thing anyone said about a new business idea was “patent that, dude”. Moods have shifted slightly, and that doesn’t seem to be the prevailing attitude anymore. This has me wondering, what changed? I think the answer boils down to two words.
After the meteoric rise of the internet, the concept of protecting intellectual property almost seems more…futile. We’ve all witnessed the struggle of the music industry. Record labels threw out scores of lawsuits each year in an attempt to stem the tide of music piracy. The only result, however, is said labels losing the funds. People still illegally download music, but artists also continue to make the music. Musical quality hasn’t really suffered, either. It’s fun(and often correct) to hate on the top 40, but if you do a little digging into lesser-known artists, there are diamonds in the rough.
Why am I even talking about this? Let’s take a step back and figure out the point of protecting intellectual property in the first place. Imagine a mad scientist in the garage. After years of failed ideas, perhaps he or she invents a time machine or manages to turn a family member into a pickle. If this scientist wished to profit off their invention, would they release it into the world? Not without a patent.
The inventing of the product is the hard part; all the research and development takes years. In order for a competitor to steal the show, all they’d need to do is find a more cost-effective method of production to make it cheaper/harder/better/faster/stronger. The existence of a patenting system allows our inventor to safely market their product without fear of a copycat raining on the parade. Contrary to the popular belief that patents exist to stifle competition, patents actually exist to protect those who put in the hard work. They foster creativity and ingenuity. Why did inventors need protection?
Nothing feels worse than pouring money into a labor of love, only to have a giant company reproduce it more efficiently and erase your name from all but the most detail-oriented history books. While the internet flattens the world and makes information easier to access every day, it also reduces the cost of creation. We have free access to idea collaboration with immediate feedback. New free software platforms are launched every single day, enabling almost anyone to write code, edit pictures/video, produce music, and otherwise bring an idea to life. That’s why musicians and other types of artists continue to produce quality work despite rampant piracy; the internet reduces production and creation costs to nearly zero.
So now that we know the purpose of patents and protecting intellectual property, we can revisit the question: Does the existence of the internet invalidate the need for them? My answer is…not yet. I believe in a future where every first world country has 3d printers in family rooms and every tech project is open source. That future is not now, however, and many businesses have ideas worth protecting. What should you do to protect your startup’s idea, and how do you go about it? You’ve got some options.
A copyright protects a work of creativity or authorship. Music, writing, a theatrical play, computer code, an idea you’ve had and put pen to paper for (or fingers to keyboard, I suppose). In order to qualify for a copyright, you need to have tangibly recorded this and prove it by sending them a non-returnable copy. So you’ll actually need to write the poem, play, or rock opera and submit it to the US copyright office to have copyright protection. They’ll generally last for the lifetime of the author + an additional 70 years. Needless to say, this cannot be renewed.
A trademark applies to an image, phrase, or logo associated with your brand. Think Nike’s “swoosh” or Apple’s…apple. You can place the little “™” after it when you’ve filed for a trademark but haven’t gotten it approved yet, and can place the ® (registered trademark) afterward. To file for a trademark, you’ll need to submit exactly what your trademarked image or phrase is going to be, and also all of the products to which it’ll apply.
Patents grant you ownership of an invention and, according to dictionary.com, “especially the sole right to exclude others from making, using, or selling an invention.” There are three main types of patents. Utility, Design, and Plant.
A utility patent is the most common type of patent. You can file for a utility patent when you create a new process, machine, method, composition of matter, or an improvement to any existing form of the above. You’ll need to submit an extremely clear outline of your method or product along with proof that it’s sufficiently different from what’s already out there. A utility patent lasts for 20 years.
A design patent covers a new design of an existing product. The USPTO (United States Patent and Trademark Office) itself says “the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.” Basically, a new design of something that already exists. A design patent will legally protect your design for 14 years.
A plant patent actually just protects the asexual reproduction of a new breed of plant. I, too, was surprised when I read this. I suppose it makes sense, though, as plants are a humane method of genetic invention and design. I actually expect to see some diversification of this patent in the future as we approach ways to healthily and safely make genetic modifications to animals and eventually humans. Can you imagine patenting a new design for an aspect of a person? That is so wild, but also so cool. Anyways, back to the present; this patent also lasts for 20 years.
Finally, we’ve got trade secrets. These are things like recipes, organizational systems, and customer lists that you don’t want competitors knowing. You cannot legally protect this information once it’s out in the open, but companies will go to great lengths to keep it hidden. Non-disclosure agreements and restricted access to confidential information are both about as solid of methods as you can get to keep your information safe.
These are the most common ways to protect the intellectual property of your business. Even though the internet puts a lot of information out in the open (for better or worse), having trademarks, patents, or copyrights still allows you to have official ownership of your great idea. Even though other people around the world may have the ability to replicate what you do, it’s legally yours. This will come in handy if the competition ever gets serious enough to impact your business and lawyers get involved.
Speaking of lawyers, I know some great ones. At Post Falls Law, we’ve got extensive business law experience, and Jonathon is more than willing to help you with whatever you need. If you’ve got a legal problem, need a document written up, or are even just looking for some professional advice, we’ve got you covered. Now is the best time to act, Post Falls is one of the fastest growing cities in Idaho and turning into quite the business hotspot. Coeur d’Alene and Spokane being in such close proximity certainly don’t hurt things. Anyway, until next time!