The term "intellectual property" is a bit like the term "organic." Most people have some idea of what it means, but aren't exactly clear on the specifics.

Nearly every law student takes a class called "Property," which relates to laws and regulation of "real property," (i.e., land). One way that real property owners designate the boundaries of their land is by putting a fence around it. If an unauthorized person enters the protected land, it is called trespassing. Similarly, intellectual property forms a virtual fence around the property it protects. If an unauthorized person crosses the fence, it is called infringement.

The three most common types of intellectual property are patents, trademarks and copyrights, and they each provide different and varying levels of protection.


Patents, specifically, utility patents as opposed to design patents, protect inventions that are new and nonobvious over existing technology known as prior art. An issued patent describes the features of an invention and how it works in significant written and illustrated detail. Despite what may be described about an invention, a utility patent only protects what is claimed, (i.e., what is provided in the numbered sentences at the end of a patent). The claims form a virtual fence around an invention and allow the patent owner to prevent others from making, using or selling the invention protected by the fence without authorization. Generally, utility patents provide protection for 20 years from the date of filing.

As an example of a claim, assume someone has invented the pencil and has described their pencil in detail in the patent. A claim at the end of the patent may recite "A writing instrument comprising an elongate body and a marking material protruding from the elongate body." If an unauthorized entity now makes, uses or sells a pencil that has these claimed features, the patent owner could sue for patent infringement. Notice how the pencil claim could also cover other writing instruments such as a pen or even a tube of lipstick, both of which may have an elongate body and a marking material protruding from the elongate body.


Trademarks, commonly brand names and logos, are source identifiers that are intended to protect the public from confusion about the origin of goods and services. Trademark protection, unlike patent and trademark protection, can last forever provided the trademark owner renews their protection at appropriate intervals. The mere mention of famous trademarks like Coca-Cola, Rolex and Honda immediately bring to mind not only particular goods, but also characteristics and a certain level of quality, high or low, associated with those goods. When a consumer buys a Rolex, the expectation is for the watch to operate with precision as a fine piece of machinery and last a long time.

If an unauthorized user sells a watch with the Rolex name, but having characteristics and quality that are significantly lower than a genuine Rolex, a purchaser may be confused and may purchase the counterfeit Rolex for a high price expecting it to be a Rolex when it is in fact of much poorer quality. While fewer people buying a Rolex from a street vendor may be confused as to the expected quality of that watch, there are reasonably high-quality superfakes, which contribute to an estimated 40 million counterfeit watches sold globally each year, the net profit of which is roughly $1 billion, according to TechCrunch.


Finally, copyrights protect works of authorship, such as novels, music and lyrics, paintings and software, among many others. Providing protection to authors fosters and induces creativity and original ideas and allows those who create original works to profit from their works. Copyrights last for the life of the author plus 70 years, or in cases of a work-made-for-hire, the shorter of 95 years from publication or 120 years from creation.

With a significant amount of content being available seemingly for free on the internet, there are countless examples of unauthorized users reproducing such content for their own benefit, only to have to pay substantial monetary damages to the copyright owner who successfully enforces their rights. As a practical tip, when using someone else's creative work for your own purposes, think about what rights the author may have and whether you may need their permission to use their work. By proceeding blindly, you may be taking an unnecessary risk of committing copyright infringement and may have to face the legal and monetary consequences that follow.

Originally published in L.A. BIZ

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