Intellectual Property Law: A Brief Introduction

Intellectual Property Law: A Brief Introduction

Updated April 13, 2022
Intellectual Property Law: A Brief Introduction
Intellectual property (IP) law comprises a set of exclusive
the relevant field is able to make and use the invention.
rights to exclude others from making, copying, or using
During prosecution, a PTO patent examiner reviews the
certain intangible creations of the human mind. The U.S.
claimed invention to determine if it is (1) truly novel,
Constitution provides Congress with two powers relevant to
useful, and nonobvious; (2) directed at patentable subject
IP rights. First, the IP Clause empowers Congress to grant
matter; and (3) adequately described in the patent
“Authors and Inventors the exclusive Right to their
application. This process typically involves significant
respective Writings and Discoveries” in order “[t]o promote
back-and-forth between the putative inventor and the PTO
the Progress of Science and useful Arts.” Second, the
patent examiner, and may take several years before the
Commerce Clause allows Congress to regulate interstate
patent is issued (i.e., granted), or the application is rejected.
and foreign commerce. Generally, IP rights are intended to
encourage innovation and the spread of knowledge by
If the PTO grants the patent, the patentee has the exclusive
providing incentives to create new works and generate
right to make, use, sell, and import the invention for a set
useful inventions. IP law may also serve other purposes,
term of years. Most patents issued today expire 20 years
such as promoting fair competition, preventing consumer
from the date that the application was filed, although the
confusion, or deterring economic espionage.
patent term may be extended for certain reasons, such as
delays in patent prosecution. Any other person wishing to
The U.S. economy is increasingly knowledge-based, with a
practice the invention needs permission from the patent
growing focus on technology and innovation. A recent
holder during this period.
study by the U.S. Patent and Trademark Office (PTO)
found that IP-intensive industries—such as computer
To enforce the patent, the patent holder may sue alleged
technology, entertainment, apparel, and pharmaceuticals—
infringers in federal court and seek injunctions (i.e., a
account for 47 million American jobs and $7.8 trillion in
judicial order to cease infringing activity), damages, and
economic value, representing 41% of U.S. gross domestic
other legal remedies. Patents are presumed to be valid, but
product. IP law, given its economic and cultural
accused infringers may defend against lawsuits by claiming
significance, is thus more important than ever to Congress.
noninfringement (i.e., what they did was not covered by the
patent) or invalidity (i.e., the patent should never have been
At the federal level, IP includes four main forms of legal
issued because, for example, the invention was not new).
protection: patents, copyrights, trademarks, and trade
secrets. These legal protections are each distinct, although
Under procedures created in 2011, certain patent validity
often confused. Each form of IP protects a different type of
disputes may be heard by the PTO’s Patent Trial and
intellectual creation, has a different procedure for obtaining
Appeal Board’s administrative patent judges, as well as in
rights, and grants the IP owner rights that vary in scope and
court. In the case of allegedly infringing imports, patent
duration. As a result, each of these different areas of law is
holders may pursue remedies through the U.S. International
best considered separately. This product provides a brief
Trade Commission.
overview of each form of federal IP protection.
Copyright Law
Patent Law
Copyright grants creators of “original works of authorship”
Whoever invents or discovers “any new and useful process,
a set of exclusive rights in their creative works. Forms of
machine, manufacture, or composition of matter, or any
expression that are copyrightable include literary works
new and useful improvement thereof” may apply to obtain a
(such as books and computer code); musical works and
patent before the PTO. Patents can be obtained on almost
sound recordings; pictorial, graphic, and sculptural works;
any invention made by humans, save for laws of nature,
audiovisual works (such as movies and television); and
abstract ideas, and natural phenomena. For example, new
architectural works. The key requirements for a copyright
pharmaceutical drugs are often patented. The key
are that the work is independently created, at least
requirements for a patent are that the claimed invention is
minimally creative, and fixed in some tangible form. For
novel, useful, and nonobvious; that the inventor is the first
example, an unoriginal collection of facts (such as an
person to file a patent application; and that the patent
alphabetical telephone number directory) or a work copied
application discloses sufficient technical information about
verbatim from another is not copyrightable. Moreover,
the invention to the public.
copyright does not extend to ideas, processes, systems,
discoveries, or methods of operation.
The process for obtaining a patent before the PTO—called
“patent prosecution”—is fairly demanding. The patent
Copyright attaches once a work is created and fixed in a
application must contain a written specification that
tangible medium of expression (e.g., recorded in a
describes the claimed invention such that a person skilled in
computer file or on a piece of paper). Unlike patents and
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Intellectual Property Law: A Brief Introduction
trademarks, the copyright holder does not need to apply
consumer confusion. Like other forms of IP, trademark
with the government to obtain a copyright. To sue in federal
owners may sue alleged infringers to obtain injunctions and
court, however, American copyright holders must first
damages in court. Accused infringers may defend on
register their copyright with the U.S. Copyright Office.
various grounds, including that the trademark is not valid,
or that the marks or products involved are too distinct to
Holders of copyrights generally have the exclusive right to
actually confuse consumers. If properly renewed and
reproduce the work, publicly perform and display it,
maintained, trademark rights may last indefinitely.
distribute it, and prepare derivative works from it. For most
works created today, the copyright does not expire until 70
Trade Secrets
years after the death of the author. Once the copyright is
Like trademarks, Congress’s power to protect trade secrets
registered, copyright holders may sue infringers in court to
derives not from the IP Clause, but from the Commerce
seek injunctions and damages.
Clause. Trade secrets protect commercially valuable,
confidential information. Its subject matter is broad,
“Fair use” is an important limitation on copyright that
reaching any form of business, scientific, or technical
permits certain socially valuable uses that would otherwise
information that has value from not being generally known
be infringements (e.g., using portions of a copyrighted work
or ascertainable to another person (e.g., a competing
in a parody or book review). Fair use is governed by a four-
business). Examples include secret recipes, formulas,
factor test: courts will consider the purpose and character of
financial information, source code, or manufacturing
the use, the nature of the original work, the substantiality of
processes. Matters of public knowledge or information
what was copied, and any market harm from the use. Courts
generally known in an industry may not be a trade secret.
also consider whether the use is “transformative,” that is,
whether it adds new expression, has a different purpose,
Until relatively recently, trade secret protection was
and/or alters the original work with new expression or
primarily a matter of state, not federal, law. In 1996,
meaning. In addition to fair use, the Copyright Act contains
Congress created criminal remedies for certain thefts of
a number of more specific statutory limitations for
trade secrets, such as economic espionage to benefit a
particular uses, such as for certain uses by libraries, in
foreign government. Later, in the Defend Trade Secrets Act
classroom education, or during religious services.
of 2016, Congress created a general civil remedy for trade
secret violations. Protection for trade secrets remains
Trademarks
available under state law, which has generally similar
Trademarks are the third main area of federal IP law.
requirements.
Although a form of IP, trademark protection is not derived
from the Constitution’s IP Clause. Rather, Congress’s
Owners of commercially valuable information need not
power to regulate interstate commerce is the source of
formally apply with federal or state governments to obtain
authority for federal trademark law. Trademark law seeks to
legal protection for an asserted trade secret. However, the
protect consumers from unfair competition by preventing
owner must take “reasonable measures” to keep the
businesses from misrepresenting the source of goods or
information secret. For example, an owner may restrict
services, as well as encouraging brands to invest in the
access to the information, require confidentiality
quality and consistency of their goods and services. In
agreements of employees who receive the information, or
general, any “word, name, symbol, or device” may be used
place the information on secure computer systems.
as a trademark to identify a particular business’s goods or
services. Familiar examples include brand names and logos,
The owner of a valid trade secret may not legally prevent
such as NIKE and its “swoosh” symbol.
all acquisitions, uses, and disclosures of the information.
Rather, federal and state law provide a legal remedy only
The availability of trademark protection depends on the
when a trade secret is “misappropriated.” Misappropriation
distinctiveness of the proposed mark. Generic and deceptive
includes acquisition of a trade secret through “improper
terms may not be registered or protected as a trademark in
means,” such as theft, bribery, computer hacking, or a
any case. Descriptive terms (e.g., New York Pizza, Fast Dry
violation of a nondisclosure agreement, as well as
Cleaners) and surnames cannot be trademarked unless the
disclosures knowingly made in violation of a duty to
term acquires an association with a particular source of a
maintain secrecy. Acquiring a trade secret through lawful
product (so-called “secondary meaning”). Arbitrary or
means, such as reverse engineering or independent
merely suggestive terms may be immediately registered and
discovery, is not a misappropriation.
protected as marks without a showing of secondary
meaning.
Owners of trade secrets may sue in court to prevent actual
or threatened misappropriations and obtain monetary
To obtain a federal trademark, a business is required to
damages for losses caused by misappropriations. Certain
register the mark with the PTO. (Limited common law
types of trade secret misappropriation carry federal criminal
rights are available without registration.) Each registration
penalties as well, such as the unauthorized appropriation or
for a mark is limited to a particular type of good or service.
transmission of a trade secret with the intent to benefit a
Trademark rights also are available under state law.
foreign government. As long as the information remains
secret, trade secrets may last indefinitely.
Owners of trademarks have the right to prevent other
businesses or persons from using similar marks to identify
Kevin J. Hickey, Legislative Attorney
their goods or services, if such use is likely to cause
IF10986
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Intellectual Property Law: A Brief Introduction

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https://crsreports.congress.gov | IF10986 · VERSION 3 · UPDATED