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Updated April 13, 2022
Intellectual Property Law: A Brief Introduction
Intellectual property (IP) law comprises a set of exclusive
rights to exclude others from making, copying, or using
certain intangible creations of the human mind. The U.S.
Constitution provides Congress with two powers relevant to
IP rights. First, the IP Clause empowers Congress to grant
Authors and Inventors the exclusive Right to their
respective Writings and Discoveries in order [t]o promote
the Progress of Science and useful Arts. Second, the
Commerce Clause allows Congress to regulate interstate
and foreign commerce. Generally, IP rights are intended to
encourage innovation and the spread of knowledge by
providing incentives to create new works and generate
useful inventions. IP law may also serve other purposes,
such as promoting fair competition, preventing consumer
confusion, or deterring economic espionage.
The U.S. economy is increasingly knowledge-based, with a
growing focus on technology and innovation. A recent
study by the U.S. Patent and Trademark Office (PTO)
found that IP-intensive industries-such as computer
technology, entertainment, apparel, and pharmaceuticals-
account for 47 million American jobs and $7.8 trillion in
economic value, representing 41% of U.S. gross domestic
product. IP law, given its economic and cultural
significance, is thus more important than ever to Congress.
At the federal level, IP includes four main forms of legal
protection: patents, copyrights, trademarks, and trade
secrets. These legal protections are each distinct, although
often confused. Each form of IP protects a different type of
intellectual creation, has a different procedure for obtaining
rights, and grants the IP owner rights that vary in scope and
duration. As a result, each of these different areas of law is
best considered separately. This product provides a brief
overview of each form of federal IP protection.
Patent Law
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any
new and useful improvement thereof' may apply to obtain a
patent before the PTO. Patents can be obtained on almost
any invention made by humans, save for laws of nature,
abstract ideas, and natural phenomena. For example, new
pharmaceutical drugs are often patented. The key
requirements for a patent are that the claimed invention is
novel, useful, and nonobvious; that the inventor is the first
person to file a patent application; and that the patent
application discloses sufficient technical information about
the invention to the public.
The process for obtaining a patent before the PTO-called
patent prosecution-is fairly demanding. The patent
application must contain a written specification that
describes the claimed invention such that a person skilled in
the relevant field is able to make and use the invention.
During prosecution, a PTO patent examiner reviews the
claimed invention to determine if it is (1) truly novel,
useful, and nonobvious; (2) directed at patentable subject
matter; and (3) adequately described in the patent
application. This process typically involves significant
back-and-forth between the putative inventor and the PTO
patent examiner, and may take several years before the
patent is issued (i.e., granted), or the application is rejected.
If the PTO grants the patent, the patentee has the exclusive
right to make, use, sell, and import the invention for a set
term of years. Most patents issued today expire 20 years
from the date that the application was filed, although the
patent term may be extended for certain reasons, such as
delays in patent prosecution. Any other person wishing to
practice the invention needs permission from the patent
holder during this period.
To enforce the patent, the patent holder may sue alleged
infringers in federal court and seek injunctions (i.e., a
judicial order to cease infringing activity), damages, and
other legal remedies. Patents are presumed to be valid, but
accused infringers may defend against lawsuits by claiming
noninfringement (i.e., what they did was not covered by the
patent) or invalidity (i.e., the patent should never have been
issued because, for example, the invention was not new).
Under procedures created in 2011, certain patent validity
disputes may be heard by the PTO's Patent Trial and
Appeal Board's administrative patent judges, as well as in
court. In the case of allegedly infringing imports, patent
holders may pursue remedies through the U.S. International
Trade Commission.
Copyright Law
Copyright grants creators of original works of authorship
a set of exclusive rights in their creative works. Forms of
expression that are copyrightable include literary works
(such as books and computer code); musical works and
sound recordings; pictorial, graphic, and sculptural works;
audiovisual works (such as movies and television); and
architectural works. The key requirements for a copyright
are that the work is independently created, at least
minimally creative, and fixed in some tangible form. For
example, an unoriginal collection of facts (such as an
alphabetical telephone number directory) or a work copied
verbatim from another is not copyrightable. Moreover,
copyright does not extend to ideas, processes, systems,
discoveries, or methods of operation.
Copyright attaches once a work is created and fixed in a
tangible medium of expression (e.g., recorded in a
computer file or on a piece of paper). Unlike patents and](ViewImageLocal?handle=hein.crs/govegkz0001&div=1&collection=&method=preview&ext=.png&size=3)
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