Your business may have knowledge that is extremely important to it, that you wouldn’t want competitors to know. This information might include information about the actual costs of making your products, supplier information, customer lists, lists of potential sales leads, and the like. Your product may contain a formulation or combination of qualities that makes it unique. All of these types of information might fall under trade secret protection.

A trade secret, as defined by the Uniform Trade Secrets Act, is something that:

(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

So, to qualify for trade secret status, the relevant information must gain value from its secrecy, and your business must be taking “efforts” to maintain that secrecy. Thus, a client list may be important to you, but it is not going to be a trade secret if you post it on your website. Conversely, the nicknames you give people on your team might be a secret that you keep inside your company, but it’s unlikely to have great economic value. Neither would likely be protectable as a trade secret. A list of your suppliers and the prices you pay them, if kept only accessible to people within your company and trusted outside advisors who need to know that information, would likely attain trade secret protection.

Unlike other types of IP, trade secrets are not “infringed,” but they can be misappropriated, (i.e., stolen). This means that if you gain access to a trade secret improperly, or if you use trade secret information in a way that you know the owner of the trade secret does not authorize, you can be liable to that owner. But generally, if you figure out someone else’s trade secret on your own, using legal means (by, for example, reverse engineering, or through your own research on publicly-available information), you’re free to use it as you see fit.

The go-to example of a trade secret is the formula for Coca-Cola. That formula is valuable to its owners in part because of its secrecy. But if you figure out the exact ingredients on your own, you can market a competing product. Of course, you could not call it Coca-Cola without running into trouble (because of trademark law).

As another example, the formulation of materials for use in the sole of a shoe might be protectable via patents or trade secrets. If you think it’s going to be easy for competitors to reverse-engineer your product, patent protection is generally the better route. If it’s going to be hard for anyone to figure out how you make a product, and if you are confident you can enforce rules that retain secrecy of your materials and methods, trade secret protection is a valid decision. How easy will it be for someone else to figure out what that shoe sole is made of, and how important is protection of that information to your company? Those are the types of questions that go into these decisions.

Trade secret protection was traditionally based on state-specific law, but it was eventually made largely uniform via the Uniform Trade Secrets Act, a version of which has been adopted by almost every state. Trade secrets can remain trade secrets for as long as they are kept secret and retain value to their owners.

This article is part of a five-part series. Read Part 1 here.

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.

Intellectual Property Law Basics was originally published in Smolinski Rosario Law on Medium, where people are continuing the conversation by highlighting and responding to this story.

Trademark protection applies to any “word, name, symbol, or device” used in commerce. The use is right there in the name: it’s a mark used in trade. Generally, trademarks to indicate the source of a good or service. Trademarks can be used without registering them, but marks that are important for a business should be researched and registered.

Trademark research consists of searching for previous usage of the mark in commerce. Because trademark registration can get relatively expensive (more expensive than copyright registration, but less expensive than a patent), and because branding is so important to a business, it’s a bad idea to put a lot of investment behind a mark that is already in use. Sometimes the options that aren’t available are pretty obvious. You wouldn’t want to start a new shoe company called “Nike.” But for most new business and product names and logos, it won’t be clear whether there is already use in the marketplace, so looking before you leap is a good idea.

Trademark registration in the US means filing an application for federal registration of the mark with the US Patent and Trademark Office. The applicant submits an example of the mark and also chooses a “class” for the mark, which is a description of goods or services that the mark is meant to cover. One mark may be used for several classes. For example, the Chicago White Sox mark might apply to both sporting events and athletic apparel. If that is the case, separate fees are paid for each class.

Registered trademarks are denoted with an ®, and unregistered trademarks are often marked with the legend TM. The TM designation may mean that a registration application is pending; it can also mean that the user of the mark has decided not to seek registration for some reason. Registration gives the owner several rights that do not apply to non-registered marks.

As with other types of IP, most countries have their own trademark systems and rules, and international protection of trademarks can get quite complex and expensive.

The goals of trademark protection are to avoid customer confusion in the marketplace and to reward the originators and users of a specific mark in commerce. Marks that have a high degree of creativity or abstractness are generally more protectable than marks that have a more generic nature or are clearly associated with the good or service. Thus, “Apple” for computer is a strong mark, because the association of the word Apple with computers is almost solely due to the good branding practices of that company. Meanwhile, a mark such as “Computer” for a computer would certainly never get authorized for registration in the U.S., and even a more abstract term like “Computing Machine” as a computer brand would have a slim chance of gaining good protection for its user.

Trademark registrations can last for as long as a mark is used in commerce, if regular statutorily-required maintenance fees and statements demonstrating their use in commerce are filed.

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.

Intellectual Property Law Basics was originally published in Smolinski Rosario Law on Medium, where people are continuing the conversation by highlighting and responding to this story.

A reason for patents’ legitimacy as an indicator for interest is that they are expensive. A single patent filing will cost anywhere from the low thousands of dollars on up to $10,000 or more once attorney fees and filing fees are considered. Also, they generally take a good amount of effort from the inventors in reviewing and preparing the filing.

Filing a patent shows a little more seriousness than putting up a blog post or a tweet. The total number of patents filed and issued serves as a good gauge of the real interest of any given technology.

Given this perspective, it is useful to look at the data on patents related to blockchain technology as a proxy for perceived technical merit. There are a considerable number of patents issued and pending applications related to blockchain technology.

The chart below shows the total number of issued patents related to blockchain in the USA. The data was generated by searching for issued patents that contained any of the following words: bitcoin, blockchain, cryptocurrency, distributed ledger, or ethereum.

As you can see from the chart, the trend line is up and to the right for total patents being issued.

Note that this data is given by filing date; many applications filed in 2017 and 2018 are still pending and we would expect those numbers to rise significantly.

We see there are a few thousand pending blockchain applications that may eventually become issued patents. The chart for pending blockchain applications is shown below. The data for this chart was generated using the same search terms as in the first chart.

There has been a considerable increase in the number of patent filings in the past three years. Furthermore, pending patent applications do not publish until 18 months after the application was filed, so we can expect to see the number for 2018 to go up quite a bit if the trend line holds.

For now, we’re going to hold off on any major conclusions to be gleaned from this data. It is interesting, however, to see that literally thousands of patent applications related to this technology are pending, and the rate of filing shows no signs of fading.

Whatever the price of your favorite cryptocurrency may be at the moment, we think there is reason to expect patent activity to continue to trend upward, as all kinds of entities try to patent their own special slice of the blockchain pie.

If you’re interested in learning more about Intellectual Property, check out the first piece of our three-part IP Law Basics series here: https://medium.com/smolinski-rosario-law/intellectual-property-law-basics-c0b125f12b52

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.

Blockchain Patent Filing Trends was originally published in Smolinski Rosario Law on Medium, where people are continuing the conversation by highlighting and responding to this story.

According to the U.S. Code, copyright protection applies to “original works of authorship fixed in any tangible medium of expression.” This means that almost any writing, sound recording, film, or photograph will be protected by copyright if there is any creativity whatsoever in its creation.

Copyright protection exists as soon as a work is created, with no additional work necessary from the creator or owner. If the work has business importance, though, it is often a good idea to register the work with the Copyright Office, which is part of the Library of Congress. Copyright registration is generally the quickest, least expensive, and easiest type of IP registration. Having a registered copyright gives the owner benefits such as being able to bring copyright infringers into court in any applicable federal jurisdiction in the US and increasing the types of damages the owner can collect from an infringer.

As with patents, the enforcement of copyrights is the responsibility of the owner. Thus, having a portfolio of copyrights isn’t all that valuable unless their owner is willing to sue others for infringement.

Unlike with patents, accused copyright infringers may have a defense of fair use, meaning that due to general social good that comes from specific types of use, use that would otherwise infringe is given a pass. Further, accused infringers may point to their independent creation of their works to show that they are not infringers. For patents, independent creation (that is, making something without knowing about the patent) doesn’t serve as a defense to infringement.

You should know that making a defense of fair use or proving independent creation can be very time-consuming and expensive processes, and thus if you are an accused infringer and you are going to rely on one of those defenses you should consult with a lawyer so that you can better understand the kind of work you might be facing.

For new creations, in the U.S. copyrights last for the life of the author plus 70 years. If the work is a work-for-hire, the copyright lasts for the shorter of: a) 95 years from the time of publishing or; b) 120 years from the time of creation.

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.

Intellectual Property Law Basics was originally published in Smolinski Rosario Law on Medium, where people are continuing the conversation by highlighting and responding to this story.

Patents apply to most things we usually think of as “inventions,” including, in some cases, offerings incorporating software. In the U.S., patents are administered by the Patent and Trademark Office (often abbreviated as the USPTO). While just about every country in the world has its own patent system, and different subject matter may be patentable in different countries, here’s what the U.S. Code says about patentable subject matter:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…”

Under this definition, a wide range of different types of subject matter may be covered by patents. The scope of a patent is determined by claims found at the end of the patent, and generally prepared and prosecuted by a patent attorney who is (in addition to being a member of a state bar) licensed to practice before the USPTO.

There is also a sub-type of patents called “design patents” that covers the ornamental designs of products. Instead of a group of claims, a design patent relies on its drawings to define its coverage. If you’ve got a product concept that relies heavily on its unique look and feel for differentiation in the marketplace, a design patent is often a good thing to have.

A patent gives the owner the right to bring someone into court for patent infringement, and that’s it. Thus, standing on its own, a patent gains its greatest financial value if its owner is capable of bringing infringers into court. Suing someone for patent infringement is an expensive and time-consuming proposition. A patent is often considered a “contract with the government,” in that for explaining the full nature of an invention, the inventor is granted a period of exclusive use of that invention.

On a per-invention basis, patent coverage is usually the most expensive type of IP to acquire. Of the four basic types of IP, patents generally offer the broadest protection to an owner, because claims can be construed rather broadly if they are prepared and prosecuted carefully. Patent applications generally take two to three years after filing to mature into patents. So, compared to other types of IP, patents are relatively slow-moving and expensive, but they can be quite powerful.

Patents usually last for 20 years after the date of filing, if maintenance fees are paid on time.

The field of patent law is immensely complex, with a lot of rules and caveats and unexpected wrinkles. The information presented here is a good overview of the basics. Future pieces here will cover things more thoroughly.

This article is part of a five-part series. Read Part 3 here.

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.

Intellectual Property Law Basics was originally published in Smolinski Rosario Law on Medium, where people are continuing the conversation by highlighting and responding to this story.