Last month, we published a blog post highlighting the differences of two forms of Intellectual Property protection, Trademarks and Copyrights. As promised, this second post looks at another major form of IP, the inventor’s friend: Patents. We’ll contrast those with copyrights, for, as it turns out, they are vastly different in their history, scope, and operation in our society. For readers in a hurry, here’s the takeaway: Patents and copyright, which were “born” the same sentence in the US Constitution, still bear a strong family resemblance. We might even think of them as the twins of Intellectual Property, although they are twins which were separated at birth—their paths have diverged greatly since 1787.
The US Constitution (1787) speaks —rather famously for us IP wonks— of authors and inventors who are to have monopoly-style rights recognized in their writings and discoveries, respectively. According to this clause, Congress shall have the authority:
“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.”
Limning that complex sentence out a little further, “to promote” and “securing for limited times” applies to the each of the two categories of creative types: authors – and their respective writings, and inventors – of their discoveries.
The Framers did not invent (!) either notion, neither copyright for works of authorship nor patents for inventions —both had existed in British law for decades by 1790, and indeed both had been the subject of some earlier American laws in the former colonies (after 1777, states). The new Congress, sitting in its first session, would soon be called upon to create enabling statutes for each form of protection.
The first US patent law was passed and signed in 1790. The first copyright law was passed in the same session, a few weeks later. Congress clearly saw the two forms as distinct.
- 1790 Patent Act: “…invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used…”
- 1790 Copyright Act refers to: maps, charts, or books; also, a lot about printing, reprinting, and publishing and vending of the same.
Copyright, as we have discussed in other blog posts here, protects original expression once in a fixed form, and in 1790 that was a fairly limited group of types of work. Perhaps the best way to think of this, as the Constitution and the 1790 law did, is primarily as pointing towards authors and, by extension, publishing for such works.
Patents are available for inventions, or, as the Constitution calls them, “discoveries.” Someone who is first to “discover” how to make a practical sewing machine, or to transmit electrical signals over copper wires at a distance or wirelessly, prepares an appropriate application and files it with the Patent Office, and, if all goes well, is awarded a patent. Although there is writing – literary expression – involved in the descriptions, disclosures and claims made in a patent, and there are citations to relevant prior art, the discovery itself is not a “work of authorship” in the sense of copyright.
Today, patents and copyrights are managed separately within the US Federal Government, the first, and much larger by staff and budget, being the US Patent and Trademark Office (USPTO); and the second, the US Copyright Office.
Another important difference between patents and copyrights is in the length of their respective terms. The term of a patent is 20 years from the date of application (which has to be pretty close in time to the invention itself); the term of a copyright is, in the general case, the life of the author plus 70 years (or in the case of an unidentified or corporate author 95 years from publication), regardless of the date of registration (if any). This may be thought of along these lines: patents provide relative strong protection – highly enforceable — protection for a shorter term, while copyrights provide relatively weaker —hemmed in by exceptions — protection for a quite long term. For example, a well-written patent can pretty much (if not completely) protect an idea while a copyright absolutely cannot.
An additional difference is that, through its adherence to the international Berne Convention on copyrights, the US, like virtually all other countries, recognizes copyright in a work created anywhere in the world even if it has not been registered, while a patent must be applied for, and (one hopes) eventually granted in each country in which protection is sought —after a fairly thorough and expensive government examination process in each country separately—, in order to be effective.
There is a lot more that can be said on this topic, but I think we have covered the core distinctions at this point. One way to look at the relationship of patents and copyright is that, born together as they were, and then separated in their travels through the legal and regulatory systems, as well as through their different uses in society and the marketplace, patents and copyrights meet again at the public purpose benefit each provides. Both patents and copyrights are intended to encourage the creation of new intellectual property that may be of value to society – which is why government offers a monopoly for a limited period of time for the authors or inventors who create the intellectual property and hope to benefit privately, through money or fame or whatever other legitimate private reasons they have. That is the quid pro quo of IP protection.