As this blog unfolds, it will be easier to follow if readers have a basic understanding of intellectual property law. Thus, I will briefly introduce the four main areas of intellectual property in the United States and to help readers distinguish between them so that folks do not call a copyright a patent, or a trademark a copyright, and so forth (I have often seen such confusion when reading Internet forums about cake decorating, so lets sort these things out right here).
Because today is Constitution Day, and because patent rights and copyrights are based on the Constitution, today I’ll start with just patents and copyrights, saving trademarks and trade secrets for later.
PATENT: Generally speaking, a patent is a right to exclude others from making, using, selling, offering to sell, or importing the patented invention into the United States.[1] It can apply to a new and useful machine, process, article of manufacture, or composition of matter.[2] Patents last for 20 years from the date the application for patent is filed with the U.S. Patent and Trademark Office.
COPYRIGHT: Copyright protection applies to original works of authorship that have been fixed in a tangible medium of expression so that the work can be perceived or reproduced.[3] A copyright grants the owner exclusive rights to, among other things, reproduce the work, create derivative works based on the original, and distribute copies by sale, lease, or rental.[4] The duration of copyright protection for a work changed drastically over the course of the last century, but Congress has only lengthened that protection. For works created on or after January 1, 1978, copyright protection persists for the life of the author plus 70 years.
The key difference between patents and copyrights, is that patents apply to the “useful arts”[5] whereas copyrights apply to creative works of authorship. Thus, in a manner of speaking, you cannot patent a painting or a song, but you could copyright those things. However, you could perhaps obtain a patent on a new kind of paint, or for a new piece of recording equipment.
The other important difference is that obtaining a copyright is very easy, whereas obtaining a patent is relatively more difficult. All that is needed to obtain a copyright is to create an original work of authorship fixed in a tangible medium of expression; you don’t even have to register the work with the U.S. Copyright Office! The copyright attaches as soon as the work is created. On the other hand, obtaining a patent requires filing an application with the U.S. Patent and Trademark Office, making your case that the invention is new and useful, novel, and non-obvious, and hoping that no one else has discovered your invention before you, even if they didn’t patent it. Patent applications may take 18 months or more before they generate a patent.
The balance between these is that patents afford very strong protection to the inventor, while copyrights afford less strong protection to the artist. Interestingly, the people who founded the United States knew the value of innovation and creativity to society, and so they provided a basis for copyright and patent protection in the Constitution.[6] The founders knew that this protection would provide an incentive for artists and inventors to create new things, and that society would benefit in the long run as more inventions and works became available to the public.
After this brief discussion, it may also be clear that with respect to food itself, copyright law may be more relevant than patent law. Patent law will obviously apply to inventions like KitchenAid mixers or perhaps certain other kitchen implements of which my food ignorant mind is unaware. However, as the blog unfolds, and hopefully as more culinary specialists comment and participate, the application of patent law to the food itself, maybe as particular compositions of matter, will become more transparent.
[1] 35 U.S.C. § 154(a)(1).
[2] 35 U.S.C. § 101.
[3] 17 U.S.C. § 102(a).
[4] 17 U.S.C. § 106.
[6] U.S. Const. art. 1 § 8 cl. 8. This clause gives Congress the power to “promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Id.
