Intellectual property is intangible property that arises out of mental labor. It encompasses inventions, designs, and artistic work. Federal and state laws give certain rights and protections to those who develop creative works to exclusively control intangible assets in the form of:

• Copyrights
• Patents
• Trademarks
• Trade Secrets

The Constitution gives Congress the power to pass laws related to intellectual property. Article I, Section 8 of the U.S. Constitution gives Congress the authority to grant authors and inventors copyright and patent rights. Federal copyright law is found in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. Patent law is found in Title 35 of the United States Code.

Congress’ power to enact federal trademark protection is derived from the Commerce Clause. The Lanham Act is the primary statute that covers trademark law, but there are also state laws associated with trademarks. Most states have adopted part or all of the Uniform Trade Secrets Act, which protects any confidential business information that gives an enterprise an edge over the competition. Trade secrets include manufacturing, industrial, and commercial secrets.

In general, intellectual property rights are enforced by rights holders through civil lawsuits against the party that is infringing against the right through its conduct. The particular remedies for infringement vary depending on the types of intellectual property at issue.

Copyrights

Copyright protection is afforded to “original works of authorship.” Copyright protection includes the right to reproduce, the right to create derivative works, the right to distribute, and the right to publicly perform. Contrary to popular perception, copyright protection does not extend to mere ideas, systems, concepts, principles, or discoveries in their abstract forms.

Instead, to be eligible for copyright protection, a work must be fixed in a tangible medium of expression from which it can be communicated either directly or with the help of a device. The medium can be known now, or it can be later developed. Copyrightable works include literature, music, dramas and plays, choreography, pictorial work, graphics and sculptures, motion pictures, sound recordings, and architectural work.

Patents

A patent is a monopoly that provides an exclusive right to make, use, offer to sell, or sell a particular invention in the United States, or import it into the United States, for a limited period. The purpose of giving inventors patent protection is to encourage inventers to invest their time and resources in developing new and useful discoveries. In order to obtain the limited monopoly, inventers must disclose patented information to the U.S. Patent and Trademark Office (USPTO). In order to get a patent, the application to the USPTO must demonstrate subject matter that can be patented, usefulness, novelty, non-obviousness, and enablement.

Trademarks

To obtain trademark protection, a word, phrase, logo, symbol, shape, sound, fragrance, or color must be used in commerce by a producer to identify goods, and it must also be distinctive. Exclusive rights to a trademark are awarded to the first producer to use it in commerce. The second requirement of distinctiveness encompasses four traits: arbitrary/fanciful, suggestive, descriptive, and generic.

Trade Secrets

Under the Uniform Trade Secrets Act (UTSA), trade secrets are information that derives independent economic value from not being generally known through appropriate means by other people who might obtain economic value from its disclosure or use, and that the holder of the trade secret strives to keep secret with reasonable efforts. In the past, improper use or disclosure of a trade secret was a common law tort, which required six factors to be considered when deciding whether information counted as a trade secret. However, the majority of states have enacted the UTSA. In addition to proving that the trade secret qualifies for protection, a trade secret holder trying to enforce a trade secret under the UTSA needs to prove that a defendant wrongfully acquired and misappropriated the secret information.

Last updated April 2018