What Is Intellectual Property? A Quick Guide To Protecting Your Ideas

As someone who is passionate about scientific innovation, it can be strange to think about ideas as property. The reality is that because so much technology is already patented, protecting your innovations will give your company the best shot at success by ensuring that another company doesn’t obtain legal rights to your idea first and then sue you for using it.

Protection of your innovations is important in seeking financial backing and enabling you to take steps against another company that might obtain legal rights to your idea first and sue you for using it. If you take proper actions first, you have the best shot at maintaining your rights.

When you come up with a new idea, it becomes your intellectual property (IP). All biotech startups are either creating intellectual property, using intellectual property from others, or some combination of the two.  As an entrepreneur, you know how hard you work to perfect your ideas, and therefore why it’s important to protect them.

There are several ways to do it, and a good IP lawyer can help you figure out which ideas should be protected and how to do it. 

Three types of legally protected intellectual property are patents, trademarks, and copyrights. In the United States, these are overseen by the United States Patent and Trademark Office (USPTO) and the United States Copyright Office.

It’s a good idea to look through these agencies’ websites (uspto.gov and copyright.gov) to learn about which types of IP protection apply to your product. You should also think about whether you’re using any IP that might be owned by other people or companies. These websites can help you with that also.

Your lawyer will be a key part of helping you navigate this as you continue to refine your technology  and scale your business.

Types of Intellectual Property & Their Requirements

There are four basic types of intellectual property, which each have their own eligibility requirements.

Patents

Patents grant inventors property rights over their inventions, which helps prevent other people or companies from claiming these new products or technologies as their own. The greatest risk of not patenting your invention is that someone else will do so first, giving that entity the ability to make it difficult or impossible for you to use it as you intended.

According to the US Patent and Trademarks Office, patents grant ‘“the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention.

A patent’s term is 20 years from the time of filing the application (15 years for design patents), and it is important to note that a United States patent is only applicable within the United states and its territories and possessions.  You must apply for rights in other countries separately.

There are three different types of patents, and they can apply to a whole or part of a product: utility, design, and plant patents.  

Utility patents cover any new technology or product and significant improvements to existing products. Utility patents might include a biological compound or pharmaceutical, a device, or an improved manufacturing process. 

Design patents cover the visual or ornamental design elements of a product.  You might also consider a design patent if you have particularly unique visual elements for which you want to claim rights and incorporate into future products. 

Plant patents apply to any distinct and new plant created through breeding or other human efforts that can asexually reproduce. When a plant patent is granted, the inventor may exclude others from asexually reproducing the plant or using it, selling or offering it for sale, or importing it. Tuber propagated plants are excluded. A similar form of protection is offered by the United States Department of Agriculture for sexually reproduced plants through certificates of plant variety protection.

If your invention has actually been mentioned in other patents, literature, or other publications, it is barred from patenting.  It would be considered to be “prior art” or already publicly known. If you publish your own invention, United States patent law includes a one-year grace period in which you may file a patent application and avoid having that publication count as prior art against your patent application. However, it is always safer to file a patent application before publishing.

The patent application process is rigorous, expensive and time consuming, so having a great lawyer is essential in making sure that you don’t miss any key steps and that you don’t run into problems later. The basic requirements for a patent include:

• Patentable subject matter: The invention has to be a process, machine, manufacture, or composition of matter, or improvement. It cannot be a natural phenomenon, mental process, or abstract intellectual concept.
• Utility: The invention has to be useful.
• Novelty: The invention must be novel.
• Non-obviousness: The invention must be sufficiently creative and non-obvious, not something that is readily apparent to a person of “ordinary skill” in the relevant field.
• Enablement: The patent application must contain a written description of the invention, including the manner and process of making and using it, so that a person skilled in that field can make and use the invention.

Trademarks

Trademarks are very literally “marks” that identify your product or service as unique to your company. They are defined by the USPTO as a word, phrase, symbol, design, or combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.

They vary widely, but are most commonly a word or phrase, or a visual part of your product like a logo or an insignia that you often display. The key to trademark protection is use in commerce. Part of the process of registering a trademark is showing that you have used it in commerce. If your use is interstate commerce, you may register at the USPTO and obtain the right to use the ® symbol. 

Otherwise, you may rely on common law or state statutes, and, in either case use ™ on your products and publications to show your intent to protect the mark. Before you start using a design, symbol, or catchphrase, check to make sure that no one is already using it or something similar in the relevant channel of commerce.  

If you register your trademark you will clearly put others on notice that you intend to protect it from being used. 

Copyright

The United States Copyright Office describes copyright as “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” Copyright attaches to many types of works, including, paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, and plays.

The copyright holder has the exclusive rights to make copies of the work; modify or prepare derivative works based on the work; distribute copies of the work to the public through sale or other transfer; perform or display literary, musical, and dramatic works publicly. Copyright applications are fairly straightforward, and once you’ve been approved you can sue anyone who uses your work without permission.

The life of copyright protection begins at the time the work is initially authored and lasts for life of the author plus 70 years. Copyright protection for works made for hire and anonymous or pseudonymous is the shorter of 95 years from publication or 120 years from creation. Works created before 1978 have different terms; consult your attorney or find the term of duration on copyright.gov.

Trade secrets

Unlike patents and copyrights, trade secrets are protected primarily under state law. Generally, a trade secret is information that has value because it is kept secretly and is subject to reasonable efforts to maintain its secrecy.

Trade secrets can be things like food formulas, certain algorithms, and user data. If you have information like this that doesn’t quite fit into a copyright or a patent, you may be able to protect it with non-disclosure and confidentiality agreements, or with a formal program of confidentiality for employees of your company. Diligent information management is important in ensuring that trade secrets stay secret. 

Can You Use IP That Isn’t Yours?

Another important consideration as you navigate the complicated world of intellectual property is how you might be using someone else’s IP in your business, which in the world of life sciences you almost certainly are.

Your lawyer can also help you determine the appropriate legal steps to take to ensure that you don’t get in trouble later.  We have explained more about how to legally use IP that’s not yours in our articles about licensing. 

A Quick Recap

As a business, especially one in the life sciences, you are constantly creating intellectual property. Whether it’s something you should protect legally with a patent, trademark, or copyright, or trade secrets that make your business unique, you’re probably feeling overwhelmed and even confused by what you should protect and how.

You also might be feeling nervous about using someone else’s IP without knowing it. We’ve said it many times already, but this is why you need an expert IP lawyer.

Not only can they help you determine the IP you have that needs protecting, they can also help you figure out whose IP you might be using and how to make sure you’re doing so legally. Your time is better spent on innovation than on legal battles over who owns a potentially life-saving idea.