It’s becoming more and more common for estate planning attorneys to help clients develop plans that incorporate one or more type of intellectual property. Intellectual property, or IP, is a type of property that doesn’t necessarily exist in the physical world. Federal law creates different types of intellectual property rights, and each type comes with specific requirements. Even though not everyone owns intellectual property, it’s possible that you could have some intellectual property rights without even realizing it. Before you craft an estate plan, it’s important to know the difference between the three main types of intellectual property.
Intellectual Property Type 1: Patents
A patent is an intellectual property right specifically granted by the United States Patent and Trademark Office, or USPTO. Patents apply to inventions. Any time you create a new product, new way of creating a product, or come up with some similar type of innovative design feature or process, you can submit a patent application to the USPTO. If granted, your patent rights last for 20 years, during which time you have the exclusive right to use, license, or transfer the patented invention.
Intellectual Property Type 2: Trademarks
Trademarks are similar to patents in that you have to apply for trademark protection before you can claim to be the owner of this type of intellectual property. A trademark, however, is very different from a patent in that it isn’t really an invention. A trademark is a slogan, logo, or a name that you specifically identify with a product, process, company, etc. Trademarks, like patents, can only be issued by the USPTO. Once issued, trademark rights last for 10 years, but you can renew them every 10 years as needed, as long as you can show the trademark is actually in use.
Intellectual Property Type 3: Copyrights
Any original work of authorship you create that is fixed or attached to a medium automatically gains copyrights as soon as you create it. Copyrights apply to any original work, such as novels, photographs, paintings, or films.
Unlike patents and trademarks, copyrights are not something you have to apply for. Anytime you create an original work of authorship you automatically gain copyrights to that work. Filing for copyright protection is available to you, and afford some additional protections, but it is not necessary. For example, your family photographs are all copyrighted even though you have likely never filed for copyright protection.
Depending on the time you created the original work, your copyright in the work lasts for your entire life plus an additional 70 years after. The owner of the copyrighted work has the exclusive right to make, perform, or profit from the work. Like other forms of intellectual property, these rights are transferable.