Patent, Copyright & Trademark PDF Free Download

The Congress shall have Power 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....

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A patent and a copyright are two forms of intellectual property holding many similar characteristics, though the differences between the two are quite numerous. The differences between the patents and copyrights are related to the types of work they protect, the manner in which they are established, and the terms of both protections.

There is little direct evidence about the Patent and Copyright Clause’s original meaning. The clause neither represented a legal tradition of great historical and practical significance to the Framers, such as the availability of habeas corpus (see Article I, Section 9, Clause 2), nor was it one of the great structural innovations of the Constitution that attracted so much attention because of its gravity and novelty. Rather, the clause appears to have been largely an after-thought.

The clause was neither the subject of much debate during the Constitutional Convention nor was it a major topic of discussion during the ratification debates. James Madison, in his wrap-up of “miscellaneous powers” in The Federalist No. 43, devoted only a single paragraph to the clause, justifying it both on the need to provide a national, uniform standard of intellectual property regulation as well as on the merits of the protection itself. “The copyright of authors,” Madison wrote, “has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.” On this point Madison was mistaken; the House of Lords had decided in 1774 that copyright was not a common-law right, and invention patents had always been granted as a matter of political discretion, not legal right. In the very same breath as he extolled a natural-rights view of intellectual property, however, Madison also struck upon an incentives-based approach, justifying intellectual property regulation by its contribution to the public, as well as private, benefit. Madison concluded, “The public good fully coincides in both cases with the claims of individuals.” He did not address the question of what to do in cases in which the public’s good is not served by extending intellectual property rights.

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In the end, no one appears to have objected seriously to the clause. George Mason and Thomas Jefferson (privately to Madison), along with a few other Anti-Federalists, raised concerns over the granting of state-sanctioned monopolies, which the Framers certainly disfavored as a general matter. But no one took the clause to authorize federal trade monopolies, and such objections were rebuffed by Federalists (in Jefferson’s case by Madison himself) by reference to the value of granting copyright and patents and the need for national uniformity, which no one appears to have questioned. What little direct evidence we have about the circumstances of the clause’s adoption has been of little help in resolving the disputes that have arisen, many of them quite recently, over its meaning.

The clause’s text, too, has been of limited help in resolving modern disputes over its meaning. Although some commentators have developed complex textual arguments about the clause, courts have been wary of applying the many limits potentially to be mined from its wording. In Graham v. John Deere Co. (1966), the Court discussed the limits of Congress’s power under the clause. It declared that Congress may not grant patents “without regard to the innovation, advancement or social benefit gained thereby” or “whose effects are to remove existent knowledge from the public domain or to restrict free access to materials already available.” More generally, the Court opined that the patent system as adopted must “promote the Progress of . . . useful Arts.” In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Court stated that because the clause permits copyright protection only for creative works, facts cannot be copyrighted. But neither Graham nor Feist involved actual challenges to Congress’s power; neither case required the Court to apply the limits it had found in the clause. In fact, the Court has been deferential to Congress. Thus, although the Court has frequently repeated its statement in Graham that “[t]he clause is both a grant of a power and a limitation,” at the same time it has explained that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright and Patent Clause’s objectives.” Eldred v. Ashcroft (2003).

Indeed, with one early exception, the Court has deferred to Congress’s view of its own powers under the clause. For example, in Eldred, the Court upheld not only Congress’s extension of the duration of copyrights to almost five times what it was in the 1790 copyright act, it also ruled that the requirement that copyrights be for “limited Times” did not prevent Congress from extending the copyright term for a work already under protection. Similarly, in Golan v. Holder (2012), the Court upheld section 514 of the Uruguay Round Agreements Act (which extended protection to some works previously in the public domain), eliding the Court’s pronouncement in Graham as dicta and rejecting a narrower interpretation of the clause as authorizing only copyright grants that promote the creation of new works. Rather, the Court deferred to Congress’s possible interpretation that the withdrawal of works from the public domain could, on the whole, “promote the diffusion of knowledge.” The early exception to the pattern of deference was in the Trade-Mark Cases (1879), in which the Court held that the clause did not provide authority for federal trademark legislation. Even that limit was eventually circumvented by Congress’s use of the commerce power as authority for trademark legislation.

Although the history of the clause’s adoption has not featured prominently in the Court’s jurisprudence, history has. Indeed, Justice Ruth Bader Ginsburg (echoing Justice Oliver Wendell Holmes, Jr.) wrote in Eldred that, when it comes to interpreting the clause, “a page of history is worth a volume of logic.” In a series of cases, the Court referred to early congressional practice under the clause in interpreting the clause’s reach. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court held that protection for photographs was within the clause even though the clause limits copyright to “Writings” and “Authors,” in part because the first Congress granted copyright protection to other graphical works (such as maps and charts). The Court later extended this logic to allow protection for sculptures as well. Similarly, in both Eldred and Golan, congressional practice under the clause figured prominently in the Court’s interpretation, including both the extension of copyright terms for existing works and in the protection of works previously in the public domain.

It is possible that, given the strongly deferential approach taken by the Court in Eldred and Golan, the Court will permit virtually any grant under the clause. The prohibition against copyright in facts contained in Feist, for instance, could just as easily be characterized as dicta as was the prohibition against recapture of the public domain contained in Graham. Should the Court encounter legislation seeming to exceed the clause’s limits, proponents of such measures might rely on other constitutional powers, such as the power to regulate interstate commerce and, because some of new grants might be intended to bring the United States into compliance with international intellectual property conventions, the treaty power (raised but not relied upon by the Court in Holder). Such reliance on other clauses has been the subject of much debate by commentators but little action by courts. The Court’s decision in National Federation of Independent Business v. Sebelius (2012) striking the “individual mandate” provisions of the Patient Protection and Affordable Care Act of 2010 as beyond the power to regulate interstate commerce but upholding them as an exercise of the taxing power suggests that the powers enumerated in Article I, Section 8 are indeed alternative rather than exclusive and that, should the Court’s deference to Congress’s interpretation of the Patent and Copyright Clause run out, legislation pursuant to other powers is a potential avenue.

Just as proponents of broader exclusive rights have looked to other parts of the Constitution, so too have their opponents. In Harper & Row Publishers, Inc. v. Nation Enterprises (1985), the Court acknowledged the possibility that copyright legislation might result in so heavy a burden on speech as to run afoul of the First Amendment. In Eldred v. Ashcroft, the Court held that copyright term extension did not call for heighted First Amendment scrutiny because “the traditional contours of copyright protection” include protection for the expressive interests normally guaranteed by the First Amendment, prompting the question of whether some copyright protection (such as the removal of works from the public domain) might deviate far enough from those traditional contours to require heighted First Amendment scrutiny. In Golan, the Court clarified that those “traditional contours” with First Amendment significance are limited to the idea/expression dichotomy and the fair use defense and that removal of works from the public domain, for instance, presents no serious First Amendment problem.

Even given the seemingly broad discretion the Court has given Congress with regard to patent and copyright laws, with the ever-increasing importance of information to the economy, it is likely that constitutional challenges to intellectual property laws will continue.

Bruce W. Bugbee, Genesis of American Patent and Copyright Law (1967)

Jane C. Ginsburg, No 'Sweat'? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone, 92 Colum. L. Rev. 338 (1992)

Adam Mossoff, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in Historical Context, 92 CORNELL L. REV. 953 (2007)

Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 Colum. L. Rev. 272 (2004)

Tyler T. Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 84 J. Pat. & Trademark Off. Soc'y 909 (2002)

Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (2002)

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)

Golan v. Holder, 132 S. Ct. 873 (2012)

Patent Law ResourcesHow to Patent an IdeaProvisional PatentPatent PendingDesign PatentPlant PatentUtility Patent

The difference between patents and copyrights is the type of intellectual property that they protect from being exploited without their permission. 5 min read

1. What Is a Patent and What Is a Copyright?
2. Protecting Your Ideas
3. Copyright vs. Patent: What's the Difference?
4. Why Are Copyrights and Patents Important?
5. How Long Is My Idea Protected?
6. Registering a Copyright
7. Applying for a Patent
Trademark8. When Should You File for Both?
Patent, Copyright & Trademark PDF Free Download

Updated November 12, 2020:

What Is a Patent and What Is a Copyright?


Patents, typically utility patents, and copyrights are both types of intellectual property that grant rights to creators and inventors and protect their work from being exploited without their permission but differ in the type of property they protect.

Protecting Your Ideas

Business success hinges on ideas. Without an original idea, a business will struggle to turn a profit. But what happens when another business steals that idea? What protects a business from other people trying to take its money-making products or strategies and turn them into their own? Most companies have two options: patents or copyrights. Choosing between applying for patent protection or registering your work for copyright comes down to what it is you're trying to protect.

Copyright vs. Patent: What's the Difference?

Copyrights cover artistic and intellectual works like books, songs, plays, and even computer software. Patents protect inventions and the way an item is used (utility patent) or how it looks (design patent). According to the U.S. Patent and Trade Office (USPTO), a patent grants an inventor the right to exclude others from making, using, offering for sale, or selling an invention. A copyright protects literary, musical, and other artistic works, whether it's published or not. Typically, copyright protection is filed by individuals or artists, but there are certainly business cases for copyright protection -- especially for companies looking to protect their business model or marketing ideas. Both patents and copyrights essentially prove that you are the creator of the item or idea and declare that no one can take it from you.

Why Are Copyrights and Patents Important?

Copyrights and patents provide legal grounds for ownership and the right to pursue legal recourse if someone infringes on your idea. Otherwise, people can go around stealing ideas and creations and selling them as their own. It's hard to prove that one person had an idea over another, which is why most artists and businesses apply for protection the second they create something new.

How Long Is My Idea Protected?

When you apply for copyright protection for your work, you only have to do it once per century. According to CNN Money, all artistic work created after 1978 is protected for the entire life of the author plus 95 years if the work is published. Even if the work isn't published, it's still protected for the life of the author plus 70 years after they pass.

A patent protects the invention for 20 years, and there are even short-term patents that only last a couple of years. This allows industries to develop new standards with more efficient models that benefit the customers and save resources.

Registering a Copyright

Copyright applications are used to file claims that protect various forms of creative and intellectual expression. This protects the creators of the work from copycats or fellow creators looking to steal their ideas.

There are specific rights that come with filing for copyright protection. These include the rights to:

  • Reproduce the work (like a musician at a concert).

  • Announce the creation of the work and talk about it with the general public.

  • Make adaptations or copies of the work.

For the most part, copyright law ensures the creator owns the majority of profits that come from artistic creation -- unless the creation is used in satire.

Even though copyright protection is automatic, if you skip registration, then you cannot file a federal lawsuit to stop the infringement of your work. The registration process is fairly simple. The U.S. Copyright office provides registration forms for literary works, visual works, performing arts, and sound recordings. As long as you fill out some basic paperwork with the copyright office within three months of the work's creation, you will receive protection and can hold other people accountable for stealing your work.

Most people are already familiar with the idea of copyright protection, even if they're not familiar with that it protects. Anything that has a '©' next to it is protected by copyright. Artists and creators can place the '©' symbol to let people know that it's protected, but it's not a requirement for copyright material. As long as the paperwork is filed and approved by the copyright office, the owners can claim copyright even if they don't have a '©' on their work.

Applying for a Patent

If you're not trying to protect the expression of an idea, but rather the idea or product itself, then you should consider filing for a patent instead. Here are the three different options for small businesses when they're choosing patents:

  • Utility Patent: this is for new inventions for machines or manufacturers or for an improvement on a previous invention. (For example Google Glass)

  • Design Patent: this is for remodels from the design of a particular existing product. In this case, the function is the same, but the appearance is what is protected. (For example, a new bicycle design that's easier to pedal)

  • Plant Patent: this is for the discovery (or invention in today's labs) of a new plant that reproduces asexually.

Not only can you protect something that you create, but you can also protect the process to create it. In a corporate world where companies are constantly trying to save money, optimization patents can be as valuable as the product patents themselves. Filing a patent can be complex, so use a patent lawyer who can help you navigate through the forms, research, and other requirements.

When Should You File for Both?

In some cases, a single product can have multiple patentable features. For example, a box of tissues might have a patent on the tissues themselves along with the resealable top. These are two separate items that need two separate patents.

While most patent and copyright laws seem black and white, there are some gray areas. With software programs, for example, the actual code of the software is protected by copyright and has the same protections as a book or piece of art. However, the function of the code is protected by a patent, because the company uses their system to provide a service or product. This leads many software companies to apply for protection on both sides to keep their competitors away.


Even if you think you understand what kind of protection you need, make sure to consult a lawyer before starting the application process. Post your copyright or patent request on the UpCounsel Marketplace to get started. Our lawyers will be able to help you file for the right protection so you're covered -- no matter who tries to steal your work.