Momkus McCluskey, LLC
Attorneys at Law
A Progressive Intellectual Property Law Firm in DuPage County, Illinois
Momkus McCluskey, LLC, in the Chicago area, provides comprehensive services involving protection and exploitation of intellectual property. We handle matters including the following: antitrust, copyright, licensing, trademarks, patents and trade secrets.
The following information regarding intellectual property is general in nature, and is not necessarily intended to pertain to your particular patent or trademark issues. To schedule a consultation with an intellectual property lawyer, contact us.
Intellectual Property - An Overview
Intellectual property is the area of the law that deals with the protection of ideas. Intellectual property is a form of intangible personal property and is transferred, licensed and hypothecated like other items of personal property. There are four primary kinds of intellectual property: (1) trademarks and service marks, which can consist of a word, phrase, symbol, trade dress or other distinctive element that denotes a particular source, origin or sponsor of a product or service; (2) patents, which protect inventions; (3) copyrights, which protect original works of authorship such as books, computer programs, visual art, music and motion pictures; and (4) trade secrets, which protect confidential and economically valuable business information. These kinds of intellectual property or "IP" provide legal rights of action against the unauthorized manufacture, use, sale, distribution, reproduction or importation by persons other than the owner.
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Copyright
A copyright is a property right which gives an author of a work four main exclusive rights: (1) the right to reproduce or make copies of a work of authorship, (2) the right to adapt the work or make derivative works; (3) the right to distribute copies of the work, and (4) the right to publicly perform and/or display the work.
The exclusive rights of a copyright holder are subject to several limitations, some of which seek to preserve the right of free expression and ability to comment granted by the First Amendment, and some of which are carve-outs designed to aid certain educational and non-profit organizations. In the United States, the authors of certain works of fine art enjoy an inalienable "moral right" which is designed to prevent the subsequent misuse or mutilation of their works. Moral rights are more extensive in many foreign countries.
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Patents
A patent is a government grant to an inventor of a right to exclude others from making, using, selling, offering for sale or importing a specifically defined invention for a limited period time, now typically 20 years as measured from the effective patent application filing date. In order to receive a patent, the invention must be considered novel, useful and non-obvious.
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Trade Secrets
A trade a secret is any piece of information that (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. By way of example, a trade secret may be a chemical formula, pattern, compilation, technique, plan, process, device, manufacturing tolerance, computer program, financial data, or vendor or customer information.
Much subject matter is capable of being protected either by a patent or by a trade secret. The types of protection tend to be mutually exclusive. A trade secret depends for its very existence on not being made public, while a patent is by its very nature a disclosure of the subject matter to the public. Patents last only about twenty years, while trade secrets may last forever. The legal costs associated with acquiring a patent are much larger than those of a trade secret; the mostly nonlegal, administrative costs in keeping a trade secret protected can be much more substantial than those of a patent. It is possible to reverse-engineer a trade secret without infringement, while it is not possible to do so with a patent. The scope of protection granted by a patent can be much broader than that afforded by a trade secret. On the other hand, the kinds of subject matter protectable as trade secrets, such as financial data, are more diverse than those protectable by patents, and a trade secret does not have to be tested for novelty or nonobviousness.
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Trademarks
A trademark is a word, phrase, symbol, trade dress, product configuration, jingle or even smell which identifies the source, origin or sponsorship of the owner's goods and distinguishes those goods from the goods of another. A service mark is a word, phrase, symbol, etc. which does the same thing for services. Trademarks, service marks and certain other indicia are often collectively referred to as "marks".
The purpose of a mark is to guarantee to a consumer or other relevant member of the public that the goods or services in connection with which the mark is used that those goods or services are genuine, and that the goods or services so marked have a certain consistency in their quality. Trademarks and service marks are representations of the "goodwill" which the owner enjoys in the minds of the public. Trademark law grew out of the "common law" (judicial case law) on unfair competition, which more generally prohibits the false representation of a product's origin, materials or other characteristics, where those false representations are likely to cause confusion in the mind of a prospective purchaser.
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