What’s This “IP Stuff” All About?
By: Patent Attorney Dave Winters
Pirates rule #:1 It ain’t personal.
Intellectual Property (IP) rights are tools. Learn your tools. This is an essential part of your shipboard apprenticeship. A seaman, ignorant of the difference between a fid and a marlinespike, is unlikely to make effective use of either one. He’s a hazard to himself.
The major US intellectual property “tools” are patents, trademarks, copyrights, and trade-secrets. They are created by statute. Commerce is their purpose. It is just business; Nothing personal.
Understand this. Intellectual properties such as patents or copyrights, are not the result of “basic” or “inherent” rights. They are merely creations of artificial rules in the game we call “commerce.“ As would be true with any other game rules, we’d be silly to take them personally. Such rules may read pretty strictly, but they are imperfect, and in application, there is generally plenty of latitude. As in any imperfect system, while we may often quibble over details, the only sensible philosophy is, “No harm; No foul.”
Think about this for a moment. Get your head around it, now, and you can avoid some otherwise costly, non-productive, and flatly wasteful legal quarrels, later. Also be aware, however, that many, many players have not acquired this simple piece of seaman’s wisdom. Many legislators may be members of this illustrious uninformed group. Do not take their ignorance personally, either. It is merely one of those facts with which you, the enlightened, must struggle forever, hereafter.
Our Constitution succinctly defines the overall purpose of Intellectual Property statutes in Article I, section 8, clause 8, assigning to Congress 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.”
Important little clause. Look at it as a providing for a contract between you and the public. If you create something original and useful, the “law”* can award you exclusive rights to commercialize your valuable creation for a limited time. In exchange for those rights, you must disclose all the detailed secrets of your creation. That way we can all make and use it, once your monopoly is expired. Ergo, you get to enjoy an advantage in your creation for a limited time. Then, all the rest of us get to share in the benefits of your creation, forever thereafter. Everybody wins.
Well, at least, everybody wins so long as we stick to the above quoted basic constitutional principles. Do not assume, however, that US statutes and regulations faithfully adhere to these principles. Legislative divergence from “the true course” can be frequent and frustrating, as will be noted on occasion throughout this volume.
*We use the term, “law” in this case, merely to mean “statutes and regulations