Is That a Patent, Trademark or Copyright?

Gerald R. Prettyman, J.D., LL.M.

If you wouldn’t know a patent if one bit you[1], you are not alone. Most of the public doesn’t know the difference, and there are lawyers who are uncertain of the differences. Today, though, you are lucky enough to have this article in front of you to learn the difference. Bear in mind, however, this is just an overview. If you want to know more, refer to the footnotes.

Patents

First –  a patent provides a patent owner with the exclusive right to exclude others from making, using, offering for sale, or selling the process, machine, manufacture, or composition of matter throughout the United States.[2] In other words, if the idea isn’t a process, machine, manufacture, or composition of matter that can be made, used, offered for sale or sold, a patent won’t cover it.

Trademarks

Second – a trademark is a word, term, name, symbol, or device, or any combination thereof used to distinguish the goods or services of one person in commerce from the goods or services of another person.[3] So, if the idea is used as a brand of a company’s goods or services, it is a trademark.

Copyrights

Third – copyright applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works, sound recordings; and architectural works in any tangible medium of expression[4]. Copyright thus applies only if (1) the idea is within one of these 8 areas and (2) the idea is recorded in a tangible medium of expression.

So, what is the ‘takeaway’ from these definitions.

One – Ideas alone are not protectable. To apply for a patent, trademark registration, or copyright registration, the idea must be made into something tangible, or at least recorded onto paper or into an electronic file for people to see.

Two – Ideas are not protectable if describing an act by a person. A common mistake by untrained people preparing a patent application is to refer to an act performed by a person. Something done by a person is not a process, machine, manufacture, or a composition of matter so a patent does not apply. The same applies for copyright. A registration for choreography or other act performed by a person (such as yoga) applies to what is on the document. If someone sees you or someone else perform your choreography or yoga, and then based on memory does your choreography or yoga, or even teaches someone else the moves, they are not infringing your copyright.[5]

Three – Patents apply to useful items created by people – not to laws of nature nor equations, nor to illegal items. There have been, over the years, patents for various machines, patents for the things that come out of machines, and even design patents for shoes, but not for burglary tools, as those not legally useful. Be aware, also, that a patent application for a process or software must not rely solely on a law of nature or an equation describing a nature process. A patent application not claiming a tangible output or reference to a tangible item is likely abstract.[6] In addition, the output should be capable of being identified back to the process or software to avoid source vagueness.

Four – Trademarks protect the public – not the company. The purpose of trademarks is for the public to have reasonable certainty to the identity of the company supplying the purchased goods and services. The trademark registration process (and in court for infringement determination) includes a review of whether there is a likelihood of confusion by the relevant public as to the source of the goods.[7]

Five – Copyright protects creativity, not effort. For this reason, instructions, tables, lists, software syntax, fonts, and the processes within software do not have copyright protection. Copyright does, though, protect the creative material within them, such as comments and even made-up text.[8]

Later articles will provide more details on Patents, Trademarks and Copyrights.

Gerald R. Prettyman is Patent Counsel to J.G., PC., Business & Corporate Law. Mr. Prettyman earned his law degree with a Certificate in Intellectual Property with Distinction and a Master of Laws in Intellectual Property.

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[1] See U.S. Patent 6,836,994 for a ‘Fish biting indication device’, https://www.google.si/patents/US6836994.

[2] This is a mash-up of 35 U.S. Code sections 101 and 154 (a)(1). There is more if you want know all the rights of patent owners.

[3] This is a mash-up of 15 U.S. Code sections 1125 (a) (1) and 1052. Congress apparently forgot to succinctly define a Trademark in the Trademarks laws.

[4] This is 17 U.S. Code § 102 rephrased to be succinct.

[5] See Bikram’s Yoga College v. Evolation Yoga, No. 13-55763 (9th Cir. 2015).

[6] In Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014), the U.S. Supreme Court said that software is not eligible for a patent if the process fails to “offer a meaningful limitation beyond generally linking ‘…the [method] to a particular technological environment’.” Though the law here is abstract (oh the irony),

[7] Again a mash-up. See 15 U.S.C. §1052, TMEP §1207 and the Model Civil Jury Instructions, 15.18 of the Ninth Circuit, http://www3.ce9.uscourts.gov/jury-instructions/node/244.

[8] People who copy information tend to be lazy. (Isn’t that the reason for making a copy?) We can then prove copying of the comments and made-up text, and thus of infringement!