Can I Patent My Business?
A Quick Guide to Patents, Copyrights, and Trademarks
OK, without further adieu, here is Greater & Grander’s crazy synopsis of patents, copyrights, and trademarks. Please note, I am NOT an attorney, and the below should NOT be construed as legal advice. Please review all questions with an actual, licensed attorney.
This is difficult territory, because, generally speaking, you can’t patent a business concept. Patents, copyrights, and trademarks, are reserved for unique intellectual property. Let’s start from the top.
Patents are meant for inventions. According to uspto.gov, there are multiple types of patents.
Utility Patent- Issued for the invention of a new and useful process, the machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application filing, subject to the payment of maintenance fees.
Design Patent- Issued for a new, original, and ornamental design embodied in or applied to an article of manufacture, it permits its owner to exclude others from making, using, or selling the design.
Now, it’s important to note that patents have been used in the past to patent new concepts. For example, this episode of This American Life discusses how Patents have been used by Patent Trolls to sue and scam tech companies. https://www.thisamericanlife.org/441/when-patents-attack
Another example: https://www.youtube.com/watch?v=3bxcc3SM_KA
I know that they were talking about fixing this Patent Troll problem during the Obama administration, but I don’t know if it ever passed Congress.
Now, this is where it gets critical, you can patent the concept for a process, such as, “I patent the idea of making coffee using liquid nitrogen.” or “I patent the idea of a computer program checking a central server for information.” but you can’t patent a business-like, “I patent making coffee and selling it.”
It’s also worth noting that there’s a possible scam on the other side, which are patent attorneys. Now, you will need an attorney to help you with a patent application, without a doubt. However, some unethical patent attorneys will encourage you to get a patent and tell you that your idea is economically viable when it really isn’t, but if you believe them, you’ll spend tons of money filing your patent, and maybe the attorney has a friend who can help you with a business plan, and a marketing plan, and physical prototype development, maybe they know somebody who can make you an infomercial, etc. And, to be clear, this patent attorney scam goes back all the way to the 19th century, it was even called out in John Steinbeck’s book, EAST OF EDEN (great book by the way). It continued into the 1990s and I remember seeing a segment on 60 minutes on the topic as a kid, and it continues to this day.
So, generally speaking, that is when Patents are used.
Copyrights are specific acts of creative work and protect original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed, and specific expression is a key factor. For example, the character of Frankenstein is in the public domain, because the character has been around so long (originally written in 1818). However, if you want to present a version of Frankenstein that has green or grey skin, a flat top head, and bolts through the neck, that is copyrighted because that is a specific interpretation created by Universal Pictures in 1931.
Similarly, the copyrighted interpretation of a story is not just a title, or a character’s name, or something that is in 1 particular scene; it has to be a series of events, and the sequence in which they appear. Here is a video on the topic. https://youtu.be/hygoLKXsUY4
Similarly, you can’t copyright a note, but you CAN copyright a song because it is a specific sequence of notes. And here’s a fun anecdote. Bikram Yoga tried to copyright their series of poses. Basically, these were poses that had existed in India for decades or even centuries, but Bikram Yoga tried to copyright them because they were presenting them in a specific order. Here is a write-up on the incident. https://en.wikipedia.org/wiki/Copyright_claims_on_Bikram_Yoga
Now, trademark. Trademark is probably the area I have the least experience in. According to USPTO, a trademark can be any word, phrase, symbol, design, or combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors. https://www.uspto.gov/trademarks/basics/what-trademark
The obvious example of this is a logo for a company, such as the Starbucks logo.
Trademark can also be kind of tricky because brands can get somewhat aggressive with it. For example, you can’t trademark the color combination of black and greed, but you CAN trademark the color combination of black and green for a coffee company, and no other coffee company would be able to use that, as it would be infringing on their trademark branding.
Does that help? Let us know in the comments!