Classification of Intellectual Property Protection:

Bill NaifehIntellectual Property - General

In the United States, intellectual assets can be protected in a variety of ways.  This post will briefly discuss the more popular forms of intellectual property protection under United States law.  Other countries may have other forms of protection in addition the protections discussed in this post.

Perhaps the most widely used form of intellectual protection is simply the use of contracts.  Contractual protection can take almost any form and is usually only limited to the creativity of the lawyers.  Typical examples are non-disclosure agreements, non-compete agreements, and non-use agreements.  The provisions in these agreements are also typically found in employee agreements and in contractor or vendor agreements.  Additionally, contract protection can be “unilateral.”  For instance, many jurisdictions enforce shrink wrap license agreements that typically accompany software and other intellectual assets.

What if you do not have a contract or cannot impose a contract on someone through a shrink-wrap license?  U.S. law also protects intellectual assets from non-contracting parties (i.e., everyone else) through a variety of legal mechanisms.  However, the intellectual asset owner usually has to do something in order to acquire protection against non-contracting parties using these mechanisms.

The legal mechanisms can generally be classified by whether the asset has a functional use.  Generally speaking, patents and trade secrets protect the functional features or use of an intellectual asset.  Trademarks, copyrights, and design patents protect the expression (or the “look”) of the asset or the “ornamental use.”

When all things are equal, many believe that protection covering the functional use is more valuable than protection covering the expression of the idea.  This is because changing the look of an item is often much less expensive than trying to design around functional features of the item.