How to Protect Your Intellectual Property: Alternatives to Patents

Patents are extremely useful (and often quite necessary) for protecting intellectual property having to do with the mechanics or process of a new invention. Under most circumstances, an inventor or entrepreneur will want to file a USPTO patent application if they plan to market a new product. But patents aren’t the only type of intellectual property protection.

Depending on the nature of your intellectual property, you might need an entirely different type of protection. Trademarks, copyrights, and trade secrets are all other methods of protecting your intellectual property rights. You may need to make use of these in addition or instead of patent protections, depending on the nature of your project.

With all these protections, there is almost always going to be a period of vulnerability. That’s the period before you’ve gotten to the stage of protecting your intellectual property by any of the following means. During that early phase, the most important protection (and the only protection) your idea has is your own sealed lips.

Protecting Your Invention: Be Discrete!

Before you’re able to acquire a patent or to register copyright, you’re going to have an idea kicking around in your head. You’re going to spend a lot of time and money developing this idea in order to turn it into an invention, product or some kind of piece of work. The last thing you want is for someone else to get wind of this fantastic idea and pull the rug out from underneath you. And so you have to be very careful about keeping this idea to yourself.

Be extremely cautious in who you tell about your idea until you’ve established some form of protection. As a general rule, you don’t want to tell anyone about your invention or idea unless they have signed a non-disclosure agreement.

While it might be tough to hear, this includes your friends. It is simply a statistical fact that the more people you tell about your invention, the higher the likelihood is that it will be leaked to the wider public. Your safest bet is to tell no one.

This isn’t because your friends are secretly evil and will sell you out to the nearest competitor. Even if they wanted to they couldn’t, since ideas are not monetizable. But your friends and relatives probably won’t consider your idea with the same sort of reverence and seriousness which you do — they simply haven’t put the investment into it that you have, and they aren’t hanging their futures on it like you are. They simply may not understand the importance of keeping it a secret, and so they might end up telling someone else without even thinking about it.

Avoid talking about your invention with anyone who doesn’t need to know. That is, only tell partners and patent attorneys until you have acquired protection.

Trademark Protection

Trademark protections, like patents, are handled by the USPTO — which is, after all, the United States Patent and Trademark Office. Trademarks serve an entirely separate function than patents, though. Whereas utility patents protect the novel function of an invention and design patents protect the unique aesthetic of a practical invention, trademarks specifically protect a slogan or logo used to distinguish the source or origin of a product. You can see our trademark at the top right of this paragraph and again at the top left corner of the page.

It might seem a bit counter-intuitive to people now to hear that the purpose of trademarks is to indicate to consumers the origins of a good or service. These days, trademarks are more associated with branding than with disclosing point of origin. But really, that’s what branding is. While the field of marketing and branding may have grown a lot more sophisticated since trademarks were first registered by the government, the ultimate purpose of a brand is to communicate to consumers that a product is coming from a specific company.

Companies want their brands to be associated with a certain aesthetic and reputation, and consumers want to buy products from companies they trust and feel positively towards. Trademarks serve as a tool for establishing that connection. They distinguish a product from its competitors.

Unlike patents — which have to be applied for — trademark rights are established as soon as you begin using a mark in your regular business dealings, provided that you aren’t infringing on someone else’s existing trademark rights by doing so. The longer and more widespread your use of the mark, the stronger your claim is to trademark protection.

Trademarks can (and should) be registered with the USPTO, though registering a trademark is not necessary to establish your rights. However, there are certain advantages to registration. They include:

• Registration of trademark constitutes ‘constructive notice’, preventing infringers from being able to claim ignorance of your rights. Without this, it can be difficult to prevent infringement from another state.
• Registration allows you to use the ® mark as a form of notice.
• You may sue infringers in Federal Court and seek statutory damages.
• Trademark registration can be used in disputes over domain names. If you have a registered trademark and your opponent does not, your claim will take precedent.
• Trademarks can be declared “incontestable” after 5 years of trademark registration. This would prevent anyone else from preventing you from continuing to use the trademark, even if they can establish that their use of it precedes yours. 
• US Customs and Border Services can intercept infringing products.

Copyright Protection

Copyrights are the most prevalent form of intellectual property protection, though they are often misunderstood. Like trademarks, copyright protection does not have to be applied for, and like patents they prevent competitors from reproducing the work of the copyright holder.

Whereas patents protect inventions, copyrights protect any sort of creative work. Whether it be a poem, a speech, a musical performance, or a letter you wrote to your grandmother when you were 12. Any original piece of work is automatically protected by copyright law from the moment it is created unless the author specifically releases it into the public domain (or under Creative Commons licensing).

Copyright protections currently last for 70 years plus the life of the author (see this page for more specific information regarding copyright duration). As with patents and trademarks, copyrights prevent others from reproducing the work or anything sufficiently similar to it, selling copies of it, or producing derivative works without express permission from the copyright holder.

As with trademarks, copyrights can be registered but don’t technically have to be. Registering with the Copyright Office does have certain advantages, though. For one, it serves as undeniable evidence of the priority of your copyright claim against any which might be made subsequently by others. Second, it allows for the copyright holder to sue infringers in federal court in pursuit of damages.

So, what sorts of things can be protected by copyright? Copyright law is much broader than trademarks or patents, and includes such things as:

• Works of art (paintings, graphical works, photographs, sculptures, architectural plans, posters, advertisements, etc.)
• Works of literature (books, poems, magazine articles, blogs, etc.)
• Musical works (including lyrics)
• Dramatic works (plays, screenplays, speeches, routines, etc.)
• Choreographed pieces (dance, pantomime, etc.)
• Audiovisual works (films, movies, television shows, etc.)
• Audio recordings
• Architectural works (buildings, structures)
• Computer programs, software, and websites

Because copyright is so broad, it might be useful to think instead of what cannot be copyrighted. The following are expressly excluded from copyright protection:

• Titles, Names, Slogans, and Phrases. Contrary to popular belief, phrases and names cannot be copyrighted. Under some circumstances they can serve as trademarks, however.
• “Functional Elements” of a machine or invention cannot be copyrighted. Only a description of such elements is eligible for copyright protection. This is the domain of Utility Patents.
• Designs of useful objects are not copyrighted. However, you may apply for a Design Patent.
• Ideas, Themes, Concepts, Topics, and Subjects cannot be copyrighted. That is, you could not copyright the notion of a ‘romantic zombie teen thriller’. You could copyright a specific film of that genre of course, but you can’t claim ownership over the concept itself.
• Abstract Characters cannot be copyrighted. Drawings, artwork, or stories featuring those characters sure, but not the abstract characters themselves. Specific characters can be copyrighted, which makes things a bit complex.
• Recipes cannot be copyrighted. Recipes are considered to be either a collection of facts or a functional description and are therefore not copyrightable. If you were to put together a cookbook, though, that representation of the recipes would  be copyrightable.
• Facts cannot be copyrighted, obviously. You cannot copyright the fact that the Earth orbits the Sun.
• US Government publications are not protected by copyright and are automatically released into the public domain.

For more information on what can and cannot be copyrighted, see our Copyright FAQ.

Trade Secrets

Unlike patents, trade secrets are not protected by any sort of registration. Indeed, unlike copyrights and trademarks, registration of trade secrets isn’t even an option — in fact, it would pretty much defeat the entire point. There are no procedures or formalities involved in establishing trade secrets. They are established and protected merely by being kept secret.

The advantage of relying on trade secrets rather than patents is that you are not obligated to disclose your invention. Patenting is based on the notion of a trade-off in which an inventor shares their innovation with the community in exchange for temporary exclusive rights to profit from that invention. Trade secrets involve no such trade, so while the inventor is guaranteed no exclusive rights, they also are under no obligation ever to disclose the invention to the wider world.

Trade secrets, therefore, can theoretically be kept secret forever, unlike patents and copyrights which expire after a set period of time. The risk is that someone else could file their own patent application at any time which would undermine even a long-held trade secret.

Trade secrets don’t just cover inventions, though. Customer lists, manufacturing techniques, special ingredient lists, and the like can all be considered trade secrets. The require are that:

• The information in question must be a secret (not widely known already)
• The secrecy of the information contributes to its commercial value.
• Reasonable steps must have been taken to keep the information secret.

Just because there is no formal process or registration though doesn’t mean that trade secrets are not protected by law. The misappropriation of someone else’s trade secrets by commercial espionage, breach of contract or breach of confidence are considered illegal. Hence, it is unlawful for a company to steal the customer list of another firm through subterfuge.

The Mythic Postage Patent or “Poor Person’s Copyright”

A prevalent misconception that comes up whenever intellectual property is discussed is the notion of a ‘poor person’s patent/copyright’. The idea has been floating around forever that one can easily and cheaply acquire copyright and/or patent protection by drawing out the plans and sending them to yourself through the postal system, perhaps with a copy of that day’s newspaper.

The theory here is that by doing this, you will have a government-verified proof of the priority of your invention if someone else later “infringes” on it. There are two problems with this.

1. This provides no patent protection whatsoever. It never has, but it especially doesn’t since the passage of the 2011 America Invents Act, in which the USPTO adopted a ‘first to file’ system rather than a ‘first to invent’ system. What this means is that it doesn’t matter that you can prove if you invented something first, the patent goes to the first inventor who files an application.
2. It also provides no copyright protection. Copyright protection is automatically granted as soon as the work is created. There is no provision in U.S copyright law pertaining to this sort of protection. Therefore, the postage copyright is not a substitute for registering your copyright, and provides no more protection than you would have had automatically before you put the work into the envelope in the first place.

At the end of the day, the best way to protect your intellectual property is to talk to an intellectual property lawyer. We recommend using ours! We’ll connect you with leading U.S based patent lawyers and intellectual property experts. From USPTO patent searches to utility patent applications, we’ve got it covered. Get a free quote today.