Introduction To Intellectual Property

By Pushor Mitchell LLP

Established and start-up businesses are repeatedly told of the importance of protecting their intellectual property, or “IP” as it is frequently called.  Before this can be done however, it is necessary to understand what IP is and how to identify when valuable IP may exist and therefore need protecting.  This article begins a series in the Legal Alert intended to first introduce what intellectual property is.  Future articles will discuss the various types of IP introduced here and address issues specific to each of these. 

Intellectual property refers to types of assets that result from creativity or from the operation of the human mind.  IP differs from other types of property in that there may not be any physical item that forms the property.  Types of IP often protect certain ideas, expressions or representations.

WHAT DOES IP PROTECT?
Because IP is not related to a specific item, the rights granted by IP ownership cannot therefore include the right to control that non existent item. Rather IP rights often grant to their owner the right to prevent others from using making or copying the idea, expression or representation.

One of the most effective ways to understand what IP is, is by reference to the subcategories that are included within IP.  The major divisions of IP are briefly introduced below.  It is also important to keep in mind that some subject matter may be protected by more than one type of IP protection however these cases are beyond the scope of this article.

PATENTS
Patents protect inventions.  An invention is any new and useful machine, device, apparatus, system, method, process or composition of matter.  A patent grants to the owner the right to prevent anyone else from making, using or selling the invention covered by the patent.  Because of the requirement that the invention be "new", it is important that inventor not tell people about the invention prior to filing for patent protection so as to not render the invention no longer "new" and therefore unpatentable. 

TRADE-MARKS
A trade-mark is a word, design, logo, sound or color that is used to distinguish the wares and services of the owner from their competitors.  A trade-mark may also be a combination of more than one of these elements.  Trade-marks may be registered, however, the mere adoption and use of a mark may provide some protection to the owner as an unregistered mark.  Trade-marks grant their owner the right to prevent any other party from applying the same or a confusingly similar mark to similar products or to closely related products in some cases. 

COPYRIGHT
Copyright protects original literary, dramatic, musical, artistic and other similar works.   Copyright protection may also extend to software.  Copyright arises automatically and is held by the original author of the work in question.  The copyright owner has the exclusive right to produce, reproduce, perform or publish the copyrighted work. 

INDUSTRIAL DESIGNS
Industrial design registrations protect the shape, pattern or ornamental features of a manufactured article.  An industrial design is limited to the aesthetic features of the article that appeal to and are judged solely by the eye.  An industrial design is not permitted to cover aspects of the article which are dictated by the way the article functions.  An industrial design application must be filed within one year in Canada of the first publication of the design or sale of the article having the design applied to it. 

TRADE SECRETS AND CONFIDENTIAL INFORMATION
Trade secrets and confidential information are types of information that are protected by maintaining the secrecy or confidential nature of the information.  This is typically done with agreements requiring the person receiving the information to also keep it secret. 

PLANT BREEDERS RIGHTS
Plant breeders rights cover new varieties of plants that are originated or discovered by the breeder.  These rights provide to the breeder, the exclusive right to sell and produce the propagating material (such as seeds, cuttings, divisions, tissue culture and harvested material) of the new variety. 

INTEGRATED CIRCUIT TOPOGRAPHIES
Integrated circuit topographies protect the two or three dimensional layout of an integrated circuit such as a computer chip.  The creator of the circuit is granted the exclusive right to reproduce, manufacture or import the topography either in final or intermediate form. 

The above information provides an introduction to the types of intellectual property that are available.  This article is intended only to assist parties in identifying when they may have subject matter that may be available for intellectual property protection.  Specific issues relating to registerability of intellectual property require a more in depth discussion than is possible here.  Although these topics will be addressed in future articles, you should contact the writer if there are specific questions that you have relating to any of the types of intellectual property discussed above.