Taking an innovation from idea to thriving business is no simple feat — every entrepreneur would do well to pursue the proper legal protections to safeguard what they have sweated and bled to create. Should they file for a patent, a trademark or a copyright? To answer this, let’s first consider the historical context.
The origins of Intellectual Property (IP) law in the United States can be traced to Thomas Jefferson who, besides being a founding father, also was an avid inventor initially opposed to the very idea of IP regulations. In a letter to Isaac McPherson, Jefferson wrote that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition…” and that inventions “cannot, in nature, be a subject of property.” Jefferson’s disdain for IP protections stemmed from IP laws dating back to medieval Europe, which granted “guilds,” or associations of artisans in a particular industry, authority by the governments to control the regulation and conduct of the various industries. In other words; legal monopolies.
Jefferson’s views changed after he became a major player in implementing the first IP laws as Secretary of State. Eventually, he came to appreciate the laws, commenting they had “given a spring to invention beyond his conception.” More than two centuries later, just as federal government’s powers expanded well beyond what Jefferson ever envisioned, so did the powers of IP law.
One of the single most important reasons innovators should take care to protect their work is that if they do not, somebody else will. These patent, trademark and copyright “trolls” are shell organizations focused on hoarding intellectual property and bullying small businesses into legal settlements. Even the biggest companies must remain vigilant — Apple and Google regularly spend more on patent litigation and defensive patent acquisitions than on research and development.
It is important for entrepreneurs to know the differences between IP legal protections:
- Patents typically are best for a service or program that helps an already existing entity or idea. This differs from trade secrets, such as the recipe for Kentucky Fried Chicken, where it is in the best interest of the owner to keep it private.
- Trademarks protect the name of products by preventing other business from selling a product under the same name and protect consumers from confusion or deception by preventing other businesses from using the same or a confusingly similar name for their products, an obvious advantage for building brand.
- Copyrights protect original works of authorship, fixed in a tangible medium of expression, such as literary, dramatic and musical works, as well as photographs, audio and visual recordings, software and other intellectual works. While it is not necessary to file for copyright protection, doing so makes it easier to pursue court enforcement of your copyright.
While many small companies opt out of IP protection due to the significant associated costs, recent developments like the rise of electronic filing systems and a new classification of small businesses have helped cut costs and speed up the filing process. Likewise, recent changes in IP law, namely the 2011 America Invents Act (AIA) have further streamlined the patent filing process by switching the U.S. from a “first-to-invent” system to a “first inventor-to-file” system for patent applications.
Deciding which type of IP protection is right for your business, or whether it is right for you at all, is something you should not attempt alone — it is best to consult an attorney. While this still can be expensive, online legal services like those offered by Rocket Lawyer are making it more affordable than ever. Whatever you decide, remember that it always is a good idea, to protect a good idea.