nun-o | New Useful Non-Obvious

Most of us come across the term “Intellectual Property” when we are trying to defend ours, are trying to acquire someone else’s, or are being acused of “infringing” upon someone’s “IP”. But what is “Intellectual Property” anyway? We are familiar with “real” property and “personal” property such as land and belongings (or “chattels”) – in other words: stuff. So what happens if that “stuff” is not “real” or “personal”? The modifier “intellectual” refers to “that pertaining to the mind”. If we put the two together, we get, “brain stuff”. And, from a certain point of view, that’s correct.

Defining IP
The World Intellectual Property Organization defines Intellectual Property as “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.”

“creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce”

The most important part of that definition is the word “creations”. Until the invention, literary or artistic work, or symbol, name, image, or design takes some form outside of the creator’s mind it is intangible and, therefore, immaterial. When it is “created” it becomes “property” and may now be promoted and protected. It is the promotion and protection of these creations of the mind that most people associate with the term “Intellectual Property”.

Constitutional Power
The U.S. Constitution specifically enumerates, as a power given to the Legislative Branch, the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. U.S. Const. Art. I, s8, cl8. The Legislature, by enacting various statutes pursuant to this power, created two Federal agencies that deal with Intellectual Property: the United States Copyright Office and the United States Patent and Trademark Office .

In the creation of these two distinct agencies, the Legislature seems to have drawn the distiction from the Constitution itself: “authors” and “inventors” – “writings” and “discoveries”. While technology has surpassed the original understanding of the framers of the Constitution, the intent is certainly evident. The distiction between something that is the fruit of intellectual creativity and that which is new and useful is being blurred by today’s technology (does software fall under the protections of copyright or patent?), but nonetheless, the two agencies stand today.

Defining Ownership
A major distiction between works that fall under copyright and those that fall under patent, or trademark is when ownership is recognized. For copyright, the creator of the work is said to have the rights to the work at the moment of creation. Works subject to patent and trademark protection, however, must be reviewed and accepted by the USPTO to be granted protections.

In the legal world, then, Intellectual Property discussions typically revolve around issues of Patent, Trademark, or Copyright. In one way or another, whatever you create should be considered property that has sprung forth from your intellect. Now, whether that Intellectual Property has value or is eligible for legal protections… that’s another story. (and, yes… that story is also eligible for protections under copyright)