Tuesday, March 10, 2009

Intellectual Property

As Francis Macrina (1) notes, “Intellectual property is a unique creation of the human mind. It has neither tangible form nor exists apart from the context of the applicable governmental jurisdiction.” As faculty members, all of us are engaged in creative activities over the course of our academic careers. And creating intellectual property is one of the ways in which we can influence our students, our profession, and our careers. However, we often do not have a clear understanding of how intellectual property is protected, and this short post here is designed to offer a few thoughts on this issue.

Intellectual property exists solely as a legal right of ownership; that is, is subject to law. In the United States, there are four forms of intellectual property: trade secrets, trademarks, copyright and patents. Let me briefly touch on each, with the trade secret and trademark getting less attention since they play a smaller role in academia.

Trade Secret: The legal definition of a trade secret is information, including a formula, pattern, compilation, device, method, technique or process that derives independent economic value from not being generally known and not being easily ascertainable, and is the subject of reasonable efforts to keep it secret. To put it in simpler terms, a trade secret is information not publicly known, but has economic value and whose owners take efforts to keep secret. An example of a trade secret would be the formula for Coca Cola. Trade secrets are covered by state law, not federal law, and are in force as long as the secret is kept. However, once the secret becomes public, it loses protection under Trade Secret laws. Trade secrets can be sold like any other commodity.

Trademark: As you might expect, a trademark encompasses pictures, sounds writings, devices or objects that allow an owner to identify an idea, concept, service or product from a competitor. They cover the goodwill of the company. An example of a trademark would be the golden arches of McDonalds Corporation or the Apple icon for Apple Corporation. Trademarks are protected at both the state and federal level and must be registered with the United States Patent and Trademark Office. Protection is granted for 10 years but can be renewed indefinitely.

Copyright: A copyright protects the fixed expression of an idea, not the idea itself. Copyright comes into existence the moment you put words down on paper (or record a few bars of music on a computer, etc.), and in most cases we need never worry about protection. However, for those who require protection, such as an author who has written a new book, registration is mandatory to protect the work. Current law protects a copyright for the life of an author plus 50 years, and in the case of a “work for hire,” for 75 years from the date of publication or 100 years from the date of creation. Copyright protects both original works and derivative works; this latter component is what requires an author who uses a table or figure from an already published work from doing so without permission. The copyright owner has exclusive rights to the sale or distribution of the work in question, and a copyright can be transferred or sold. This is typically the case when a faculty member writes a work for an outside publisher. You transfer the rights to the work to the publisher in lieu of them taking on the costs of sales and promotion. The Fair Use laws allow faculty to use some copyrighted material without permission but in a strictly controlled manner; the use must be related to criticism, news reporting, teaching or research and scholarship.

Patent: A patent is a grant by a national government to an applicant for a specific period of time during which the grantee has a legal right to exclude others from making or selling the grantee’s invention or device, so long as the grantee provides a full description of how it words to that government. This allows for continued creativity in invention, so that inventors can profit from their work while society benefits. Another way of looking at this is to say that a patent is a reward for disclosing something of social value. Patents give the inventor exclusive right to use of their invention for 20 years from the time the patent is applied for. The fundamental principle behind the patentability of a product is that the inventor made some unique intellectual contribution to the creation of the product. Further, the inventor must make an improvement that is non-obvious and useful (2). With new developments in gene therapy and biotechnology, the world of patents is changing and in the Human Genome Project large ethical issues have arisen over the propriety of patenting human gene chains. This is a subject for another day.

The protection we faculty typically seek is with regard to copyright, but we should understand the general legal issues surrounding all forms of intellectual property. That is, after all, our stock in trade.

1. Macrina F. Scientific integrity: an introductory text with cases. Washington, DC; ASM Press, 2000:179-209
2. Egan E. Class notes, BEHP 405 Research ethics; Week 3 lecture. Loyola Medical School Bioethics Program

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