Summary
Intellectual Property
Forms of Federal IP Protection
Intellectual property (IP) law comprises a set of rights to exclude others from making, copying, or using certain intangible creations of the human mind. At the U.S. 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. This Infographic compares these different forms of federal IP protection.
patent
copyright
trademark,
trade secret
Constitutional Basis
IP Clause (U.S. CONST. art. I, § 8, cl. 8)
IP Clause (U.S. CONST. art. I, § 8, cl. 8)
Commerce Clause (U.S. CONST. art. I, § 8, cl. 3)
Commerce Clause (U.S. CONST. art. I, § 8, cl. 3)
Statutory Basis1952 Patent Act
Copyright Act of 1976
Lanham Act of 1946
Defend Trade Secrets Act (2016);
Economic Espionage Act of 1996,
Initial Rightsholder
Inventor
AuthorBusiness or person using mark to identify goods or services
Owner of commercially valuable, confidential information
Subject MatterAny "new and useful process, machine, manufacture, or composition of matter"
"[O]riginal works of authorship"Any "word, name, symbol, or device" used to identify goods or services
Financial, business, scientific, technical, economic, or engineering information
Subject-Matter Examples
Pharmaceuticals, industrial machinery, biotechnology, manufacturing processesBooks, musical works, movies, fine art, architecture, softwareBrand names, logos, distinctive trade dressFormulas, source code, prototypes, customer lists, financial information
Requirements for Protection
Novelty; nonobviousness; utility; first to fileOriginality (independent creation and minimal creativity); fixation
Non-generic; (intent to) use in commerce; first to register
Information derives economic value from not being generally known
Excluded From Protection
Laws of nature, natural phenomena, and abstract ideasAny "idea, procedure, process, system, method of operation, concept, principle, or discovery"
Generic terms; descriptive terms that lack "secondary meaning"Information generally known, independently discovered, reverse engineered, or lawfully acquired
Process to Secure Rights
PTO patent application process ("prosecution")
Create and fix the work (registration is required to sue)
PTO trademark registration process
Take reasonable measures to keep information secret
Exclusive Rights Granted
To make, use, offer to sell, sell, and import the patented invention
To reproduce, distribute, or publicly perform/display the work, and/or make derivative works
Prevent uses of confusingly similar marks with respect to a particular good or service
Prevent others from misappropriating trade secret (e.g., acquisition through improper means)
Duration
20 years from filing date
Life of author plus 70 years
Potentially indefinite
Potentially indefinite
Infringement Test
Practice the claimed invention
Substantially similar to original
Likely to confuse consumers
Misappropriation
Main Defenses to InfringementInvalidity; noninfringement; inequitable conduct
Fair use; statutory limitations
Fair use; nominative use
Information not a trade secret or was not misappropriated
Selected Legislative Amendments
Leahy-Smith America Invents Act (2011); Hatch-Waxman Act (1984); Bayh-Dole Act (1980)
Digital Millennium Copyright Act (1998); Copyright Term Extension Act (1998); Berne Convention Implementation Act (1988)
Trademark Dilution Revision Act (2006); Anti-Cybersquatting Consumer Protection Act (1999)
Foreign and Economic Espionage Penalty Enhancement Act of 2012 Information prepared by Kevin Hickey, Legislative Attorney and Brion Long, Visual Information Specialist. For additional detail, see CRS In Focus IF10986, Intellectual Property Law: A Brief Introduction