You Can’t Own an Idea: An Intellectual Property Primer

By William B. Stewart, Sally S. Reilly and Laura M. Jackman

Imagine this: You are walking down the street one day when a fit of genius comes to you. What if I create a 7-inch-long stick with a row of bristles attached to it that people can use to clean their teeth and freshen their breath? I will be rich.

 

Then you do a little digging, and it dawns on you, That’s a toothbrush.

 

This innovation train left that station a long time ago. Actually, it happened a very long time ago. In the U.S., the first patent on a toothbrush, filed by inventor H.N. Wadsworth, dates back to 1857.

 

Another question comes to you soon after you make this discovery: How does a patent work, and how can I get one on a toothbrush anyway?

 

Wadsworth himself had to work hard to put his own stamp on this simple, widespread idea for a product, which was already bristling its way through Europe. He had to convince the US Patent Office that his innovations made the commonplace item original.  So must you if you want to claim an idea for a product your own.

 

Patenting is not the only way to protect the intellectual property rights attainable for your own latest, greatest toothbrush, though. You can also earn rights to trade secret, trademark and copyright protection with enough hard work on designing, manufacturing, branding and distributing your creation.

 

Here is a checklist to help you as an aspiring innovator to evaluate and determine your options for protecting your toothbrush, and to guide its creation:

 

Can your invention be patented?

 

Basic patent (and copyright) rights are granted explicitly in the U.S. Constitution.  Patents approved and published as a public record by the U.S. Patent and Trademark Office (USPTO) are protected for up to 20 years from the date for first file the patent. To meet the threshold for the issuance of a patent, you must demonstrate that your invention is:

 

  • Articulate how and why your toothbrush is different from all of the “prior art,” a term of art to describe all of the related patents that precede yours.
  • Is your spin on the toothbrush a solution to a distinct problem? What does it do and how does it work? You must lay this out in exacting detail in your patent filing.
  • Non-obvious. Is your particular combination of a toothbrush’s elements so unique that it would not occur to another, competing inventor? Then it would be “non-obvious.” Here is an example: You’ve probably toasted a marshmallow or two over a campfire a time or two in your life. Did you ever consider that the marshmallow could one day contain or a creamy or fruity filling? One inquiring mind did, and his method for getting that filling in there earned patent protection in 2004. The patent has since been abandoned, but that was quite a non-obvious twist on snack food.

 

Does a camelhair bristled brush head with 1.1 millimeters of space in between them with a handle with a very slight angle and newly created synthetic plastic an innovation that would meet the requirements for a patent? You must do your homework, as Wadsworth did in his explanation to the USPTO.

 

What are trade secrets? Can you invoke both patent and trade secret protection?

 

Unlike other forms of intellectual property, you do not need to file to protect your rights to them with the federal government. Trade secrets represent confidential, sensitive, vital processes, formulas, methods, and other work product that, if they became public knowledge or were misappropriated, would cause its possessor great harm financially

 

A trade secret can be protected indefinitely as long as the secret is commercially valuable, its value derives from the fact that it is secret, and the owner take reasonable precautions to maintain its secrecy. To protect a trade secret, businesses often use non-disclosure and other restrictive confidentiality agreements to bind their partners. Similar agreements with employees, contractors, vendors and consultants are also necessary to protect trade secrets as intellectual property.

 

It is possible to possess a publicly issued patent and maintain related trade secrets simultaneously. You may include a claim in the patent application that states the toothbrush’s handle is made of a sturdy, proprietary polymer, while not revealing the formula you use to manufacture the polymer, which is to be maintained as a trade secret.

 

You can also choose not to patent your invention at all, maintain it under tight security and keep it hidden from competitors. A patent, after all, is your exclusive right to employ the invention and to prevent others from appropriating it for themselves for 20 years. Yet your analysis may also show the trade secret affords you more leverage in the marketplace or another business advantage than a patent would particularly since trade secrets may enjoy perpetual protection. Coca-Cola, for instance, has never patented its formula and treats it as a heavily guarded trade secret. It is a secret that has become purposefully mythological, which add to the soft drink’s allure—and to its commercial viability since its secret formula has never been successfully replicated. Human nature is to want what we cannot have. By keeping its famous secret, Coca-Cola assures that we do not have it.

 

What can you trademark?

 

You are ready to start producing your angled camel-hair creation. You will now need to brand it, package it and make it attractive to your prospective customers. This means naming it, creating a logo or selecting a fancy font, choosing color schemes and perhaps securing it in a specially designed or unique container.

 

The law allows any or all of these receive trademark protection through registration issued by the USPTO. A trademark can be any word, phrase, symbol, design, a combination of these things, or any other distinguishing feature that identifies your goods or services.