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Legal Tip of the Week


Intellectual  Property

The Basics

by Jacob N. (Jesse) Erlich, Partner
Perkins, Smith & Cohen, LLP
One Beacon Street 30th Floor
Boston, MA 02108
617.854.4000
jacob_erlich@pscboston.com

Intellectual property is an intangible or proprietary asset such as a patent, copyright, trademark or trade secret.  This weekly series of tips presents a simplified review of the above forms of intellectual property.  Its purpose is not to cover all aspects of the laws and regulations pertaining to patents, copyrights, trademarks and trade secrets, but rather to provide easily understood facts about the subject matter.

Although all intellectual property is important, most individuals appear to have concerns about patents.  Therefore, the majority of these tips will be directed to understanding the U.S. patent system, with a brief summary relating to obtaining foreign patent protection, copyrights, trademarks and trade secrets.

According to the provisions of Article I, Section 8, of the United States Constitution, Congress is empowered 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."  As a consequence, the U.S. Patent and Trademark Office (USPTO) has been provided with the authority to grant patents to inventors in order to provide legal protection for their discoveries, that is, inventions. The inventor (also "applicant") may be either an individual or a group of individuals (more commonly referred to as joint inventors).  The inventor(s), however, must be an individual and not a corporation, partnership, joint venture or other legal business entity.  A patent can only be granted to a person. An inventor may assign his or her rights in the patent to other individuals or legal entities such as corporations.

There are three types of patents which can be granted by the U.S. Patent and Trademark Office:  (1) utility patents, (2) design patents and (3) plant patents.  The most common type of patent, and the patent most individuals are familiar with, is the utility patent.  Therefore, this series is directed to an understanding of that type of patent.

All further references to patents in this series outside of the following brief description of the design and plant patents will be to the utility patent.  Briefly, the design patent protects a new, original and ornamental design for an article of manufacture while the plant patent protects a new and distinct, asexually reproduced variety of plant.

The information is provided for informational purposes only, and should not be construed as legal advice.

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