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Intellectual Property Rights

Intellectual Property Rights

Intellectual property rights in the United States are regulated through the federal government through a number of rights.  The four main intellectual property rights in the United States are Copyright; Patent; Trademark; and Trade Secrets.  

Article 1, section 8 of the United States Constitution gives Congress a number of enumerated powers, one of them being that:

“The Congress shall have the power to promote the progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This provision of the Unites States Constitution permits the United States government to make laws regulating the rights of intellectual property rights holders.  


The provision of Article 1 Section 8 of the Constitution dealing with Congress’s power to create laws for the protection of intellectual property rights contains the terms: “science”, “authors”, and “writings.” This deals specifically with issues involving copyright.  

The first Copyright act of 1790 was promulgated to give protection to authors to give them rights in their works after dissemination to the public.  Intellectual property rights in the form of copyright try to balance two competing interests.  First is to encourage creativity by giving exclusive rights in creations.  The second interest is to give the public the freest possible access to works of authorship.  

In the original Copyright Act of 1790 protection for authored works extended for 14 years from the date of registration with the copyright office. With another 14 years of protection with renewal of the copyright.  In 1831 that protection was extended to 28 years with a 14 year renewal period.  Currently protection for copyrighted works exists for 70 years from the date of death of the author.  There no longer exists any requirement for registration of a copyright with the United States Copyright Office.

Even though there is no longer a requirement to register a work with the copyright office in order to have the protections of the United States government it does afford an individual certain rights.  These rights include prima facie evidence that the individual holds a copyright in cases of infringement and registration permits the copyright holder to obtain statutory damages in cases of infringement.  

In order to register for a copyright an individual must complete the required forms and two copies of the work to the United States Copyright Office.  The purpose of sending the dual copies is to have one copy as evidence of copyright in the case of an infringement action.  It also serves the purpose of giving the Library of Congress a copy for their collection.

There are certain kinds of works that are subject to copyright protection.  Those types of works include: literal works, musical works, dramatic works, pictures, sculptures, audiovisual works, sound recordings, derivative works, compilations, and architectural works.  

There are numerous exceptions to the protections that are afforded to each of these types of copyrighted works and you should investigate that specific topic further to discover what is covered.

There are some limitations to what can and cannot be copyrighted.  The cardinal rules are that ideas and facts may not be copyrighted.  Also, works of the federal government are generally not copyrightable.  

Having a copyright gives a copyright holder 5 exclusive rights: the right to reproduce the work; to create derivative works; to distribute that work to the public; to perform the work for the public; and to display the work.  If a non-copyright holder does any of the above mentioned things the holder of the copyright will have an action for copyright infringement.  

There are exceptions to the ability of a copyright holder to collect damages or an injunction when the infringer has done so under the color of one of the following: “fair use”, first sale doctrine, good faith, the potential infringer is a library, public broadcasting, or if the copyrighted work is being parodied.


Patent law in the United States is codified in Title 35 of the United States Code.  As mentioned above, Article 1 section 8 of the United States Constitution gives Congress to create laws for the protection of invention.  

Patents in the United States must be registered with the United States Patent and Trademark Office.  Originally patents in the United States allowed for a 14 year period where the patent holder would have an exclusive right to use his, or her, invention without fear of it being copied or sold without his, or her, consent.

Currently the protection period that the federal government allots patents is 20 years from the date of the granting of the patent.  Just as in Copyright protection the goal is to grant protection to individuals who invent and coerce them into putting their products into the marketplace.

The United States has a first to invent system; which is one of the main differences between United States Patent Law and that of most of the rest of the industrialized word In the United States, if an individual is the first to invent something he, or she, will be given priority in a patent infringement suit.  In countries that follow a first to file system it does not matter who invented the art first, only who files with the patent office first.  

There are a number of requirements that must be met in order to have an invention be deemed patentable by the United States Patent and Trademark Office.   An applicant must first meet the test under section 101 of Title 35.  That specific provision speaks to the utility of the invention.

According to section 101 a patentable invention must be utile, in that it must be a process, manufacture, or other form that is useful.   Just as in copyright where an idea may not be patented an idea, naturally occurring object or a scientific principle may not be patented. 

Section 102 of Title 35 speaks of novelty.  The section states that no one will be entitled to a patent unless they meet a number of requirements.  The invention must be novel in that the invention was not known or used by others in this country; the invention was not patented or described in a printed publication used or sold in this country; it has not been abandoned; and another of other requirements.  

Section 103 of Title 35 describes non-obviousness.  The pertinent law states that in order to be patentable an invention must not be obvious to a person “of ordinary skill in the art.”


Trademark is another form of protection that is afforded through the federal government.  Trademarks are protected at both the state and federal levels.   A trademark, like a copyright, does not need to be registered with the United States government but registration does afford greater protection, especially in actions where there is infringement of the trademark.

There are two bases for registering for a trademark through the United States Patent and Trademark Office.  Something can be trademarked based on its use, for a period of time, in the stream of commerce or it may be because of a bona fide intent to use.  The benefit of a registering a mark that is currently in the stream of commerce is that any infringing marks may be actionable immediately.  When a mark is based on intent to use, the infringer has a window to use the infringing mark until all the documentation involving the mark is filed and approved by the United States Patent and Trademark Office. 

One of the advantages of registering a mark is that after 5 years of uninterrupted use the mark is deemed incontestable.

There are two different types of marks that exist.  Even if a mark is not registered with the United States Patent and Trademark office an individual may still apply its own mark consisting of a ™ printed after the mark.  Although this will not afford any federal protection it may allow for protection at the state level.  A federally registered trademark consists of an R in the center of a circle.  

When a trademark is infringed an action may be brought in a state court, if it is unregistered, or in a federal district court.  There are two types of trademark infringement.  The first is when an infringing mark is identical to the mark.  The second type of infringement is based on similarity with the trademark.  Every circuit has set out different ways of evaluating whether a mark is likely to confuse the public.  The 9th circuit has set out a number of points that should be analyzed when deciding whether a mark is infringing.  These include: the strength of the mark; proximity of the goods; similarity of the marks; evidence of actual confusion; marketing channels; defendants intent on selecting the mark among other factors.

Trade Secret

The last major form of intellectual property in the United States is the trade secret.  Unlike Patents, Trademarks, and Copyrights there is actually no protection by the federal government for trade secrets.  Trade secrets are a form of intellectual property rights where the holder of the trade secret is afforded absolutely no protection.  

Trade secrets have some advantages and disadvantages over other forms of intellectual property rights.  The most important is the non-disclosure of the art.  In all other forms of intellectual property the holder of the intellectual property must submit a copy of the invention or artwork to the designated federal office; and in the case of a patent, must describe how a reasonably skilled person in the art may reconstruct the patent.  Under trade secrets the holder does not need to disclose that information.  Secondly, in all other forms of intellectual property rights the intellectual property is afforded a certain period of protection and then it is put into the public domain to be copied without compensation.  On the other hand, the disadvantage is the reverse of that coin.  A trade secret affords zero protection from potential infringers.  It is the job of the trade secret holder to protect the secret.  A great example of a trade secret that has benefited from non-disclosure is Coca-Cola; probably the most famous trade secret in history.