Q: My late brother and I developed a unique insurance concept. I applied for and received a copyright. I was later informed by a neutral party that I was also in need of a patent to fully protect our recorded documents. Is this correct?
Answer:
Primarily, you need to understand the difference between copyright, trade secret and patent law. Each protects different rights and works. Depending on your business goals and the work, you should decide which is the best protection in your situation. Given the complexity, it's often best to consult with an attorney to ensure you're making the best choice.
Copyright Protection
A copyright will protect the following categories of works:
- literary works
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
- computer programs (sometimes the graphical user interface) and Web sites
- The resulting traffic, noise and parking effects of the business.
Copyright protection gives the copyright holder the exclusive right to copy the work, modify it (that is, create "derivative works"), and distribute, perform and display the work publicly.
In your question, you speak of a "unique insurance concept." Ideas or concepts do not have copyright protection. Copyright protects the expression of the idea, but not the ideas themselves. For example, if I ask you what a chair is, you get a picture in your head; the picture I get in my head is different from the picture Buffy gets in her head. These are the "ideas" of what a chair is. However, if you were to draw the chair you envisioned in your head or use words to describe that chair, it's an "expression" of the idea--and that's what is protected by copyright.
Generally, the only protection for ideas and concepts is through trade secret law and/or confidentiality agreements, which provide a contractual remedy for misuse or disclosure of the idea.
Trade Secrets
When you have information that has economic value as a result of its secrecy and you use reasonable efforts to keep it secret, you have a trade secret. In disclosing your concept as part of your copyright application, you may have waived the secrecy needed to maintain trade secret protection, since documents filed with the government are publicly available. The copyright office allows partial deposits of information to help maintain trade secret protection.
Patent Law
- Patents protect processes, methods and inventions that are "novel," "non-obvious" and "useful." If granted, a patent gives you a 20-year monopoly on selling, using, making or importing an invention into the United States. The requirements for a patent are complex, but here they are in a nutshell:
- Your work must be novel. This means it must not be known or used by others in this country, or patented or described in a printed publication here or abroad, or in public use or for sale in this country more than one year prior to the application for patent.
- Your work must be non-obvious. This means it must not be obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made.
- Your work must be useful. This means that it must have current, significant, beneficial use as process, machine, manufacture, composition of matter or improvements to one of these. According to the Patent Office: "The word 'process' is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term 'machine' used in the statute needs no explanation. The term 'manufacture' refers to articles that are made, and includes all manufactured articles. The term 'composition of matter' relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products."
Depending on the details of your concept, it might qualify for patent protection. Patent protection requires full public disclosure of the work in detail and therefore precludes maintaining any trade secret protection in the same work.
All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.
1 Readers are cautioned not to rely
on this article as legal advice as it is
no substitution for a consultation with an attorney and an accountant in your
state. Based
on jurisdiction and time, the law varies and changes.
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