Intellectual Property Primer

Note: Readers are cautioned not to rely on this information as legal advice and to always consult with an attorney in their jurisdiction.

Intellectual Property is the group of legal rights in things people create or invent. Intellectual property rights typically include patent, copyright, trademark and trade secret rights.

The Origins of IP

Most people are surprised to discover that Intellectual Property rights originate with our Founding Fathers in the Constitution (Article 1, Section 8, Clause 8), which states that Congress shall have the power

The right to exclusive ownership and use of one's inventions and the monetary rewards from giving others permission to use them complement the other beliefs of our Founders.

In the middle to late nineteen century, these beliefs grew into capitalism, which embodies:

• the benefits and rewards of hard work (as remained from Puritanism);
• the exchange of business ideas through products and services; and
• competition in the marketplace and financial reward for the most popular or beneficial ideas.

It wasn't accidental that capitalism had many of the same theoretical bases as Charles Darwin's notions of survival of the fittest from the same time; author and Harvard biology professor Stephen Jay Gould states that Darwin read Adam Smith prior to writing his "survival of the fittest" theory.

Indeed, intellectual property law, with exception of patents which preceded the rest in codification by several centuries, reached major legal codifications in this same period -- during the late eighteenth to late nineteenth century. These laws sought to ensure that the best and most popular inventions and creations earned monetary compensation for their creators. This, in turn, inspired others to create through discussion and understanding.

Balance is the Heart of IP Law

The heart of intellectual property law is the balancing of:

• financially rewarding creation through granting of exclusive rights to the author, and
• promoting the free flow of ideas to facilitate more creation.

This balance is two-fold:

1. The tension between the reward of ideas and the encouragement of new ones.


2. The balance between the "Promotion of Science and Useful Arts" Constitutional clause above, and the First Amendment. This is an equally compelling tension between ownership of arts, words and invention, and the freedom of Americans to speak and express themselves without restriction.

This balance is visible through all the laws and all the cases about intellectual property in the United States. If you keep this tension in mind, everything else becomes much easier to understand.

So let's consider briefly what rights are granted under:

• patent law
• copyright law
• trademark law