IG10033 — Intellectual Property: Forms of Federal IP Protection

/ Intellectual Property Forms of Federal IP Protection Intellectual property (IP) law comprises a set of rights to exclude others from making, copying, or using certain intangible creations of the human mind. At the U.S. federal level, IP includes four main forms of legal protection: patents, copyrights, trademarks, and trade secrets. These legal protections are each distinct, although often confused. Each form of IP protects a different type of intellectual creation, has a different procedure for obtaining rights, and grants the IP owner rights that vary in scope and duration. This Infographic compares these different forms of federal IP protection. patent copyright trademark, trade secret Constitutional Basis IP Clause (U.S. CONST. art. I, § 8, cl. 8) IP Clause (U.S. CONST. art. I, § 8, cl. 8) Commerce Clause (U.S. CONST. art. I, § 8, cl. 3) Commerce Clause (U.S. CONST. art. I, § 8, cl. 3) Statutory Basis 1952 Patent Act Copyright Act of 1976 Lanham Act of 1946 Defend Trade Secrets Act (2016); Economic Espionage Act of 1996, Initial Rightsholder Inventor Author Business or person using mark to identify goods or services Owner of commercially valuable, confidential information Subject Matter Any “new and useful process, machine, manufacture, or composition of matter” “[O]riginal works of authorship” Any “word, name, symbol, or device” used to identify goods or services Financial, business, scientific, technical, economic, or engineering information Subject-Matter Examples Pharmaceuticals, industrial machinery, biotechnology, manufacturing processes Books, musical works, movies, fine art, architecture, software Brand names, logos, distinctive trade dress Formulas, source code, prototypes, customer lists, financial information Requirements for Protection Novelty; nonobviousness; utility; first to file Originality (independent creation and minimal creativity); fixation Non-generic; (intent to) use in commerce; first to register Information derives economic value from not being generally known Excluded From Protection Laws of nature, natural phenomena, and abstract ideas Any “idea, procedure, process, system, method of operation, concept, principle, or discovery” Generic terms; descriptive terms that lack “secondary meaning” Information generally known, independently discovered, reverse engineered, or lawfully acquired Process to Secure Rights PTO patent application process (“prosecution”) Create and fix the work (registration is required to sue) PTO trademark registration process Take reasonable measures to keep information secret Exclusive Rights Granted To make, use, offer to sell, sell, and import the patented invention To reproduce, distribute, or publicly perform/display the work, and/or make derivative works Prevent uses of confusingly similar marks with respect to a particular good or service Prevent others from misappropriating trade secret (e.g., acquisition through improper means) Duration 20 years from filing date Life of author plus 70 years Potentially indefinite Potentially indefinite Infringement Test Practice the claimed invention Substantially similar to original Likely to confuse consumers Misappropriation Main Defenses to Infringement Invalidity; noninfringement; inequitable conduct Fair use; statutory limitations Fair use; nominative use Information not a trade secret or was not misappropriated Selected Legislative Amendments Leahy-Smith America Invents Act (2011); Hatch-Waxman Act (1984); Bayh-Dole Act (1980) Digital Millennium Copyright Act (1998); Copyright Term Extension Act (1998); Berne Convention Implementation Act (1988) Trademark Dilution Revision Act (2006); Anti-Cybersquatting Consumer Protection Act (1999) Foreign and Economic Espionage Penalty Enhancement Act of 2012 Information prepared by Kevin Hickey, Legislative Attorney and Brion Long, Visual Information Specialist. For additional detail, see CRS In Focus IF10986, Intellectual Property Law: A Brief Introduction

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