This post explains why the various types of intellectual property (“IP”) cannot protect a mere idea. However, IP may protect items that one creates based on such an idea.
I first wrote about this subject on Quora. Please seeÂ Which types of intellectual property protection can I receive for my idea?
In the U.S., it is not possible to receive intellectual property protection for an idea,Â per se.Â However, as is discussed further below, it may be possible to to use an idea as the inspiration to create something thatÂ canÂ receive IP protection.
Types of Intellectual Property Protection
The most important types of intellectual property protection include utility patents, copyrights, trademarks, and trade secrets.
Utility patent:Â You cannot obtain a patent on an idea. However, if the idea leads to a novel, non-obvious, useful invention, then you may be able to obtain a patent for that invention.
Copyright:Â An idea is not subject to copyright protection. However, if that idea leads to a work of authorship (such as a document, software, or art), then a copyright will attach to that work as soon as it is fixed in a tangible medium.
Trademark:Â An idea is not subject to trademark protection. However, if the idea leads to a unique name for a product, then you may be able to obtain a trademark registration for that name.
Trade secret:Â An idea, by itself, is not subject to trade secret protection. However, if that idea leads to information that has economic value because it is not generally knownÂ andÂ you take reasonable efforts to maintain that information in confidence, then that information may be subject to trade secret protection.
The Bottom Line
In summary, there is no point asking about IP protection for an idea. However, if that idea leads to one or more suitable creations, then those creations may be eligible for IP protection.
This is part of Dana Shultzâ€™s Canonical Questions on the Lawâ„¢ series of questions and answers about legal issues, concepts and terminology.
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
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