Intellectual Property: Using the Right Tools for the Right Problems

Patents, Trademarks, and Copyrights, otherwise known as Intellectual Property, are all tools you can use for your inventions, products or services. And each comes with their advantages, and weaknesses. If you can learn about their own strengths and weaknesses, they can be used in a more appropriate way.

Patent law is especially strong and enforceable due to its strict liability standard. Therefore, good faith mistakes, ignorance of the existence of the patent, and fair use exceptions are irrelevant. The only question is whether there has been direct or contributory infringement of the claims of the patent. If each of the limitations of the claims is present in the competing product or service, there is patent infringement. The law will not entertain other issues with exception to the doctrine of equivalents and perhaps contributory infringement.

On the other hand, the primary weakness of patents is time. Patent applications can take years waiting in queue before they are opened by an Examiner. Moreover, patents enjoy shorter terms of protection as opposed to Copyrights and Trademarks.

Trademarks, on balance, are like diamonds. They can last forever. Inasmuch as the trademark is being used continuously, properly, and consistently, the trademark will be enforceable. One example is the trademark Lowenbrau. In this case, the owners claim that the mark is 600 years old.

Copyrights and Trademarks are encountered by limiting issues such as fair use. Copyrights and Trademarks are beset by various exceptions which are out of the scope of this article. In addition, when it comes to software, Copyright law does not have the teeth to prevent reverse engineering in the case of software source code or object code.