Intellectual Property

Lock and Key Sitting on Patent Documents
  • Overview

    Intellectual property (IP) is the term applied to intangible rights protecting the products of human intelligence and creation, including patents, trademarks/service marks, copyrights, and trade secrets.

    If IP rights are not adequately protected, they can be lost or stolen. In the United States, some IP rights – copyrights and trademark rights – are automatically inferred upon the creation or use of the IP assets. Other U.S. IP rights – patents, in particular – require registration with the U.S. government before they may receive protection. IP rights (also referred to as "IPR") can vary by country, although various treaties and international agreements (such as, for example, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)) are acting to globally standardize them. The Texas Secretary of State recommends consulting a private IP attorney concerning trademarks, copyrights. and other intellectual property matters.

    The United States Patent and Trademark Office (USPTO) is the U.S. federal government agency which oversees patent and, on a national level, trademark issues. The USPTO administers the patent and trademark laws and the issuance of federal patent and trademark registrations. Free basic information on the patent and trademark system, forms, fees, products and services of the USPTO is available by calling the USPTO's toll-free line, (800) PTO-9199 or (703) 308-HELP. Also, check the USPTO website for information.

  • Patents

    Patents protect inventions and processes which possess sufficient originality, novelity and utility, and which are not obvious. Examples include utility patents, design patents, and plant patents.

    • Utility patents generally protect new and useful processes, machines, articles of manufacture, compositions of matter, or any new and useful improvements thereof for up to 20 years. Examples of potentially patentable subject matter may include fiber optics, computer hardware and software, and medications.
    • Design patents generally protect an article of manufacture's ornamental designs for up to 14 years. Examples of potentially patentable subject matter may include the design of an athletic shoe or the design of a bicycle helmet.
    • Plant patents generally protect the invention or discovery of a new and distinct variety of asexually reproduced plant varieties for up to 20 years. Examples of potentially patentable subject matter may include hybrid tea roses and genetically altered agricultural commodities.

    Technically, a patent does not exist until it has been granted by the Federal government. Click here for information on filing a patent application with the United States Patent and Trademark Office.

    Patent FAQs »

  • Trademarks

    Trademarks (and Service Marks) protect words, names, symbols, sounds, or colors used by a business to distinguish its goods and services from others, and may be used as an indicator of their source and/or quality. Generally, trademarks, unlike patents, exist as long as they are being properly used in commerce.

    Trademark rights may exist without being registered with Federal or State government; however, a registered trademark is often afforded more rights and protections than an unregistered trademark. Trademarks used in interstate commerce may be registered under federal law. Trademarks used within Texas (regardless of whether they are used in interstate commerce) may be registered under state law.

    Click here for information on filing an application for registration of a federal trademark with the USPTO.
    Click here for information on filing an application for registration of a state trademark with the Texas Secretary of State. (Please note, it is advisable to consult with an attorney before registering a trademark.)

    Trademark FAQs »

  • Copyrights

    Copyrights protect original works of authorship fixed in a tangible medium of expression. Generally, a copyright may provide rights for up to the life of the author plus 70 years; but, a copyright in a work made for hire may last for the earlier of 95 years from publication or 120 years from creation. Examples of potentially copyrightable subject matter include books, films, paintings, sculptures, photographs, musical compositions, sound recordings, and video games.

    The United States Copyright Office oversees copyright issues, as well as administers the copyright laws and the issuance of federal copyright registrations.

    Copyright FAQs »

  • Trade Secrets

    A trade secret is a property right that exists under state law and is generally defined as information with commercial value that has not been publicly disclosed by its owner, and whose owner has taken commercially reasonable steps to protect it. Examples of information that may be afforded trade secret protection include formulas, customer lists, product designs, market research, business methods, and strategic plans. The hallmarks of a trade secret are that the information is a well-guarded secret.

    Businesses should identify what information is considered a trade secret, and then take appropriate precautions to maintain the confidentiality and secrecy of that information (e.g., nondisclosure agreements, encryption and/or password protection of data files). Otherwise they may lose the ability to protect such information as a trade secret. Businesses should consult with an attorney experienced in trade secret law about what measures should be implemented to help protect their trade secrets.

    Employees having access (or potential access) to confidential or trade secret information could pose a threat to their employers when they voluntarily or involuntarily leave their employ, especially when they join competitors or form their own competing business. For example, there is always the risk that former employees will attempt to divert business away from the company. To combat this problem, some employers have employment agreements containing restrictive covenants, including non-competition and non-disclosure restrictions.

    Non-competition agreements are agreements by former employees not to compete with a former employer for a specified period of time in a specified geographical area. Such agreements must meet strict requirements to be enforceable in Texas. Since they may be difficult to enforce in courts, employers should consult an attorney before designing such agreements.

    Non-disclosure agreements (or confidentiality agreements) identify the kinds of information that are to be treated as confidential (which may or may not include trade secrets). These agreements, which are generally easier to enforce than non-competition agreements, may also notify employees of the remedies the employer will pursue in the event there is an unauthorized use of this information. Again, employers should consult an attorney before designing such agreements.