According to Art MacCord, a patent lawyer with MacCord Mason, marketplace winners are those whose products are unique and desirable. MacCord shared information about protecting your company’s competitive advantage and product differentiation using intellectual property during a campfire session on Oct. 20 at IFAI Expo in Charlotte, N.C.
Intellectual property law cannot bestow desirability, but it can help maintain uniqueness. Various tools are available within the category of intellectual property law. Which tool is most useful in any given situation depends on a careful analysis.
Advantage: Reputation (for responsiveness, quality, price, delivery, integrity)
Your product or service’s name as known to the consuming public may be a trademark.
- Trademarks protect against other use of a mark that may confuse customers
- Distinctive trademarks help stand out form the competition
- Stronger marks are arbitrary or coined, not descriptive or generic
- Common law trademarks arise form use and extend to the area where you are known
- Registered trademarks prove you are known and extend nationwide
- Foreign registrations extend to their countries
- Repetitive use and advertising promotes brand awareness, leading customers to your brand—and you
Advantage: Written material, ornamentation or attractive appearance of non-useful articles or designs separable form useful articles
Copyrights protect against copying of written material, videos, music, etc., such as user instructions and internet information.
- Copyright only protects the actual expression of an idea—not the idea itself
- Product appearance for non-useful articles can be protected with copyrights
- Protection automatically arises upon creation of the work in tangible form
- Stronger protection comes from notice and copyright registration
- Registration is a prerequisite to enforcement
Advantage: Product differentiation by attractiveness of useful articles
Ownership of design patents stems from invention.
- Design patent application must be filled within a year of first offer of sale to protect in the United States or before public disclosure to protect outside of the United States
- Protects against others’ making, using, selling or importing, and begins on design patent issuance and lasts for 14 years from patent issuance
Advantage: Processing improvements, low-cost manufacture, improved product attributes of a technical nature
Trade secret law protects the competitive advantage of the company that knows the secret, because other people don’t know the secret, and the information was kept secret.
- Manufacturing techniques, product ingredients that cannot be figured out from reverse engineering an end product on the market are good choices for protection as trade secrets
- Commercial advantages, such as customer lists, cost data, and vendor information, may be trade secrets, if properly protected
- Product development plans before the product is released
- Enforcement is in court when the secret is misappropriated. These must be real secrets—not made up, after- the-fact hopes. Courts do not put the genie back in the bottle
Advantage: Improved product or process attributes of a technical nature that cannot be kept secret
Utility patent can be used to protect useful articles, compositions or matter, processes or improvements on them
- Protect against making, using, selling or importing of the patented invention by others
- U.S. protection begins on patent issuance and lasts for 20 years form patent filing date, if maintenance fees are paid four, eight and 12 years after issuance
- Ownership stems from invention
- Requires an application that must be filed within a year of first offer for sale (to protect in the U.S.) or before public disclosure to protect outside of U.S.
- Invention must be disclosed in a patent application, must be new, and must not have been obvious from what is old
- Utility patent application are not published (and might be kept as a trade secret) for 18 months after patent filing (or until patent issuance if no foreign patent rights are sought).
- Protection outside of the U.S. can be started using the Patent Cooperation Treaty to delay hard decisions and large expenses for up to two-and-a-half years.