What is Intellectual Property?
Article I, Section 8, Clause 8 of the United States Constitution states that “The Congress shall have 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.”[1] What does this mean?
Well, the Constitution of the United States in Article I, Section 8, Clause 8 sets forth that creators of creative works and inventions shall have possession of and therefore rights in and to their creations. These creations, whether they be books, songs, inventions, or some other creative or inventive work, are works of intellect, but because the creator is granted “exclusive Right” over these works, there is a property aspect to them. Hence, intellectual property rights in the United States were established.
The concept of intellectual property, or IP for short, was not something that the Founding Fathers came up with on their own. In fact, the concept of legal protections for creations of the mind can be dated to 4 B.C. as it is discussed in Aristotle’s Politics.[2] Hippodamus argues for a system where “those who discover something advantageous for the city” are rewarded.[3] Hippodamus’ proposal is one that seems pretty logical: “reward the creator of a useful thing, and society will get more useful things.”[4] This thought process is echoed in the Constitution of the United States: “To promote the Progress of Science and useful Arts.”[5]
An inventor who takes an idea of genius and turns that idea into something such as a working machine or a medication deserves to be rewarded for this discovery and have their invention shielded from theft. This reward comes in the form of a patent. Someone who creates a moving piece of music or paints a magnificent work of art deserves to have their creation protected from defacement. These creations of the mind – namely patents and copyrights - constitute intellectual property and intellectual property can be federally protected.
Trademarks differ from patents and copyrights. “While copyright and patent law seeks to encourage creative effort,” trademark law seeks “to protect consumers from being deceived into purchasing shoddy goods or services.”[6] Trademark law also seeks to protect businesses from having their brand names diluted or tarnished. Further, unlike patent and copyright law, trademark rights are codified via the United States Code, specifically 15 U.S.C. §1127.
There are four major types of intellectual property: Patents, Trademarks, Copyrights, and Trade Secrets.
1. Patent. Patent law seeks to protect new and useful inventions such as a machine, a device, or medicine.
2. Copyright. Copyright law protects creative works such as books, songs, paintings, sculptures, or a play.
3. Trademark. Trademark law protects anything that constitutes a “source identifier” – something that connects a consumer with a product or service’s source. Things such as brand names, logos, or symbols that distinguish a source from another’s can be protected via trademark law.
4. Trade Secrets. Trade secrets are exactly what they sound like – secrets of a trade. Secret formulas, processes, and recipes that are intentionally kept a secret from outsiders can constitute trade secrets.
Intellectual Property is a fascinating aspect of law and business, and yet many do not know about it or understand it. Intellectual property is valuable and worth protecting. Please contact us with any questions you have.
[1] U.S. Const. art. I, §8, cl. 8.
[2] Robert P. Merges & John F. Duffy, Patent Law and Policy 3 (7th ed. 2017).
[3] Aristotle, Politics, Book II, Chap 8, lines 23-24.
[4] See Merges & Duffy, supra note 2, at 4.
[5] U.S. Const. art. I, §8, cl. 8.
[6] John G. Sprankling & Raymond R. Coletta, Property: A Contemporary Approach 293 (3d ed. 2015).
