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What is
Intellectual Property?

 


 
What is Intellectual
Property?
IP-Related Resources
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Fundamentally, intellectual property (IP) is any property that is the result of creativity and does not exist in tangible form. The types of intellectual property that are available include, among others: patents, trade-marks, copyrights, industrial designs, integrated circuit topographies, trade secrets, and plant breeder's rights.

With the exception of trade secrets, each of the types of intellectual property listed above involves the granting of a right, having certain defined parameters, by a government authority. Although obtaining such a right forbids others from infringing on your intellectual property, it is up to you as the owner of the IP right to ensure that it is enforced. The government does not proactively enforce the infringement of intellectual property rights, although it does, through the courts, render decisions regarding IP-related disputes that are brought to its attention through the proper channels.

Below you will find a brief description of the most common types of intellectual property. For further information, please consult the IP-Related Resources page.


Patent
A patent is an exclusive right granted by a government to make, use or sell an invention. In return for the "monopoly" granted by the government, a patentee agrees to disclose, to the public, information relating to the invention. Therefore, patents benefit the public by providing detailed technical information in all fields of scientific endeavour in which patents may be granted. Patents also benefit the patentee by providing a means for safeguarding the time and money invested in the development of the invention.

A patent is granted for a new and useful invention (art, process, machine, manufacture or composition of matter), or any improvement in an existing invention. An invention must generally be found to meet requirements of: novelty (no one else has invented the invention before you), utility (the invention does what it purports to do), and inventive ingenuity (the invention is not obvious to a person with ordinary skill in the art).

The duration of patent protection is typically 20 years from the date of filing of a patent application, with public disclosure typically occurring 18 months after the filing date. A patent application is generally examined by a patent examiner to ensure that the patent applicant is, in fact, entitled to the rights which are being claimed. A patent applicant may submit amendments in response to official actions from the patent office in order to satisfy patentability requirements prior to the patent being granted. Patents grant a national or regional right. As such, obtaining a patent in one jurisdiction does not provide protection for activities occurring in a jurisdiction in which a patent has not been granted.

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Trade-mark

A trade-mark is used to distinguish the goods or services of one person or company from those of another. A trade-mark may cover a slogan, product name, distinctive package or unique product shape, and is usually associated with particular wares or services. The use of a word, symbol or design is protected by trade-mark.

The three basic categories of trade-marks are: ordinary marks, certification marks (identifying wares or services that meet a certain standard), and distinguishing guise (distinctive package or shape). The use a mark for a certain length of time can establish trade-mark ownership through Common Law without any formal registration. However, trade-mark registration is highly recommended since a registered trade-mark is valid on the face of it and the onus is on a challenger to disprove ownership.

The duration of trade-mark protection is typically 15 years from the registration of a trade-mark, and is repeatedly renewable at the end of each 15 year term. Trade-marks grant a national or regional right. As such, obtaining a trade-mark in one jurisdiction does not provide protection for activities occurring in a jurisdiction in which a trade-mark has not been granted, though some exceptions may apply for famous marks.

It is interesting to note that in Canada the term "trade-mark" as used in legislation contains a hyphen, whereas in the United States, the term "trademark" is used without a hyphen.

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Copyright

Copyright protection prohibits others from copying your work without your permission. Copyright protection rewards creative endeavour by granting the sole right to publish or use a work in a number of ways. Copyright applies to all original literary, dramatic, musical and artistic works. Copyright also applies to performer's performances, communication signals and sound recordings.

In contrast to other types of intellectual property, copyright protection is automatically granted and recognized internationally without formal application for such a right. Usually, an indication such as © or the word "Copyright" and the applicable date is sufficient. However, copyright registration is also available. Registration provides a certificate as evidence of copyright, thereby transfering the onus to an opponent to disprove it. There is no examination of applications for copyright registration.

The term of a copyright typically begins with the publication or making of a work and generally lasts for the life of the author and for an additional 50 years following the the death of the author (until end of the calendar year). Because of many international treaties, automatic copyright protection is provided in most foreign countries for a Canadian work, and Canadian copyright protection is provided for residents of those foreign countries.

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Industrial Design

An industrial design is granted to protect an original shape, pattern, ornamentation or configuration, or any combination of these features, applied to a finished manufactured article. The protection covers artistic or aesthetic qualities or an article. Any functional features would not be protected by industrial design, but possibly by patent.

The duration of industrial design protection is 10 years from the date of registration. Industrial design applications are examined by government examiners in order to verify their originality and conformance to statutory requirements. At the end of the first five years of the term of protection, a maintenance fee is due. If this fee is not paid, the protection will lapse after the initial five year period.

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Integrated Circuit Topography

An integrated circuit topography registration protects the topography of an integrated circuit product, e.g. a microchip. The registration covers the three-dimensional configuration of a series of layers of semi-conductors, metals, insulators and other materials. The protection afforded by integrated circuit topography registration covers the use, sale and manufacture of an integrated circuit product having that topography.

The duration of integrated circuit topography protection is 10 years from registration. Integrated circuit topography applications are not examined; the topographies are simply registered. Applications must be filed within two years of the first commercial exploitation.

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Trade Secret

A trade secret is a type of intellectual property that is not protected by a granted government right. Instead, as its name suggests, intellectual property is protected by refusing to disclose details relating to the innovation, thereby forfeiting any chance for patent protection. The proprietary nature of the innovation often requires employees to sign strict non-disclosure agreements regarding trade secrets.

In many cases, the option of protecting an idea by trade secret is pursued in instances where the subject matter may not be suitable for patent protection, yet is integral to a company's success. Examples of highly protected trade secrets include the Coca-Cola formula and Colonel Sanders' secret blend of eleven herbs and spices.

Among the advantages of trade secret protection are the indefinite lifetime for protection, the lack of territorial limitation, and the absence of fees to be paid. However, the major drawback to trade secret protection is that protection ceases upon discovery of the trade secret by another person, often with no recourse to the party that was attempting to protect the trade secret.

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