A Magazine about the Hudson Valley’s local economy, published by Hudson Valley Current.

Celebrating Local Creativity and Innovation: Do it Yourself Intellectual Property

Let’s cut right to the chase. 

The goal of this month is to begin the multi-column process of giving you both an overview of Intellectual Property (IP) and a DIY approach to the topic with lots of useful information. To put it all in one place, simplify, make it fun and concise; and provide some real life examples to make a complicated topic more accessible and tangible.

Two notes to start: 

First, I am a bona fide inventor, have written many patents (filing several myself), and the registrant of numerous trademarks. Usually lawyers, like doctors, will specialize in one form of IP (like trademarks as an example). The intention here is to provide a DIY approach and overview for our creative community. IP is it’s own language and can be nuanced when you dig into it. Please do not be surprised if you find yourself needing to read definitions of terms several times to get it all in your head. And, if you want to proceed on the DIY path filing your own IP, you will definitely need to go deeper on the topic. This is meant to inspire you on the path, it is NOT the path. If the column brings up questions you can email them to editor@hudsonvalleycurrent.org and if possible we can address them in future columns.

Secondly, the theme of August’s Livelihood was “Building Better Systems.” Very interesting relative to IP in regard to “open source” and the idea of sharing knowledge and ideas—for example, the way Tesla has made all of their patents public. However, let’s skip building a better system for now. For most of us we must know what the existing system is first before thinking about how to improve it. There is no “school curriculum” or standard knowledge base on IP. However, it is basically the basis for how those in business and commerce control creativity in the release of products. Alas, there have been times I’ve wondered if the powers that be really don’t want creative people to know what I’m about to share and that’s why this information is hard to find.

To begin, there are basically three types of IP governing the creative process:

  1. Copyright
  2. Trademark
  3. Patent (patents are divided into two categories—design and utility).

Now, let’s loosely define each term and what they are used for. 

Copyrights govern “artistic work.” The term literally both implies and means “the right to make copies” of said artistic work. Prince wrote the song “Purple Rain.” Clearly, copyright, the right to make and distribute copies, is very important. Prince was extremely cognizant of this and adamant about keeping the copyright rights, and masters to his work. Breaking his contract with Time Warner is an interesting topic, but too much for this month’s column!

Generally, in terms of IP, all works of art are covered by copyright. For example, copyright law covers books, plays, poems, movie scripts, paintings, sculpture, and music. We all have a sense of this. The author of the artistic work is the original owner of the copyright and then if they choose, they can license or assign the work to someone else, or a business entity, to market it for them. Alternatively, becoming much more popular now, an artist may choose to market the work for themselves. An important thing to remember is “art” is different than “invention” and copyrights are different than patents. (Note: there is sometimes a gray area between a copyright for a piece of artwork and a design patent. More on that later). 

Here is something else simple important to know: If you author an artistic work, you can use this symbol, ©, to note your intention to alert others to your prorprietary effort.  However, if you are serious about your artistic work, it is a very good idea “to register” your work with the US Copyright Office. Start poking around at Copyright.gov. Another very important thing to note are the symbols ™ and ®. Relatively speaking copyright registration is not that expensive, nor that difficult. So, if you’re an original singer-songwriter with a new song you think can be a hit, it behooves you to hit the copyright website and officially register the song and lyrics with the US Copyright Office. In terms of fees, they change and you need to check as you go. However, expect to pay about $45 to $65 per work per filing.

Unlike the ©, It is ILLEGAL to use the ® symbol if you have not registered your trademark with the United States Patent and Trademark Office (USPTO). 

Trademarks and patents are more complicated and more expensive than copyrights. 

It is important to carefully check the fees when you file, but expect about $225 per class per filing fee for a trademark. Patents have many different elements, but a small entity utility patent filing fee is currently $785 and small entity design patent would be $480.

A trademark is a word, term, mark, or symbol (logo), used for trade associated with particular goods or services. The fees are reasonable, however, having a lawyer do the work for you is significantly more expensive. A trademark lawyer’s fees are easily $2000 or more, a patent lawyer’s fees $5000 to $20,000. If you work real hard you can DIY. 

If you start marketing your new product or service, you can use the ™ symbol after the term. However, you may NOT use the ® symbol unless you register the term with the USPTO. You can’t “just register it.” There are many steps, processes, and laws involved and you will definitely need to do some research. However, it can be done…. Over the course of years I went from promoting my product as HEART™ to eventually fulfilling the criteria for a registered trademark, as a fitness device, and can thus use the term and symbol ® to let people know HEART® is a registered mark used for trade in relations to this product.

Patents (utility and design) are different and much more complicated than copyrights or trademarks. It is both harder to receive a patent and filing process is much more laborious in many ways. It can take years to have a patent issue. We all intuitively know this as a cultural norm as we hear about them in the common gestalt.

Patents generally cover an invention—an idea or concept or process of something that is considered in patent lingo, “new and novel.” In this realm it is very important to know the difference between a utility and design patent. Patents are difficult to obtain and they take a long time. Often we know “the inventors” of various things and who was granted the patent. Inventors like Tesla, Edison, Bell, and Steve Jobs. In the current business climate some people don’t feel patents have the weight they used to and people will advise others to just go to market. Others still feel patents are important and investors want to see them. Having a patent doesn’t hurt, and we’ll see how this all plays out over time.

Wow! We just got going and I’m coming to the end of my column’s word allotment. Next month we will go further into defining patents, how to search them, and an approach if you want to go down that road yourself.

In any case, be creative and keep innovating. See you next month!