Dovid’s Dairy Delights’ best-selling item was the groundbreaking Herring Blintz™. In fact, 50% of Dovid Diamond’s business profits were dependent on that savory specialty. This realization had him worried. Could an employee leave and use the same recipe to cut in on his profits? And what would happen if competitors began selling their own versions of the herring blintz? Could he patent his Herring Blintz™ to shut down potential competition? What other paths are available for intellectual property (IP) protections?
Note: as usual, this article provides a broad overview. Please seek legal and rabbinical guidance for specific applications of IP protection and usage.
Intangible Goldmines
The primary value of an Apple, Google, or Tesla is IP—the famous brands, complex patents, and sophisticated trade secrets they control. In today’s service-oriented economy, most companies and even many individuals own some valuable IP. But whereas large firms guard these intangible “goldmines” carefully, everyday people like Dovid often do not. Whether business names or product branding, creative articles, songs, or graphics, signature recipes, in-house customer and vendor lists, costly software code; inventions or product enhancements; it’s crucial to guard IP assets. In many cases, doing so can be surprisingly affordable and straightforward.
Patents Aren’t for Dreams
Patents are a form of IP protection whereby the government grants the owner a multi-decade monopoly on the covered invention. But the distance from an idea to a valuable patent is quite far, and it’s probable that Dovid’s delicacy can’t gain one. To be patentable, the concept has to be useful, novel, and non-obvious. An idea that isn’t fleshed out enough to be useful is just that—an idea, not an invention. A patent application must include specific designs and instructions on how to turn the creative idea into a useful product or process. There’s no cash in an abstract dream.
What’s the Chiddush?
Even though Dovid has a clear recipe he wants to protect, a patent application for a herring blintz™ would surely be rejected. After an application is filed with the United States Patent and Trademark Office (USPTO), examiners study it to see if the proposed invention adds something new to the world. Is fish fried in a batter a novel concept? Even if Dovid’s attorneys can prove that he was the first to come up with this particular combination—blintz plus herring—the USPTO is likely to say it’s a fairly obvious extension of cuisine that’s been enjoyed for centuries!
Trade Secrets: From Coke to Google
Even if they can, companies don’t patent every new idea or technology. The transparency required for a patent application can enable others to build a slightly different but competing product. Patent protection also runs out after 20 years for the most part. Instead, Coca Cola’s old-time recipes, Google’s cutting-edge algorithms, and innumerable aspects of corporate operations are protected as trade secrets. It’s illegal for competitors to attain and use any valuable information that isn’t readily available in the public domain and is maintained confidentially. And this IP protection can be permanent, as long as the information is kept beyond the public’s knowledge.
Secret, but Not Locked
Current or former employees can’t share or steal trade secrets such as proprietary recipes, business plans, pricing lists, or software programs. Dovid’s Herring Blintz™ recipe can be protected as a trade secret if he takes reasonable measures to keep it quiet, such as requiring employees to sign nondisclosure agreements. However, unlike a patent, there’s nothing stopping competitors from reverse engineering a secret recipe or business plan and using it for themselves. Coke’s recipe may be a trade secret, but they can’t stop Pepsi from selling their own version of cola. Even so, maintaining trade secrets is a very important part of protecting IP from unfair competition.
Trademark Security
The core element of commerce is trust—and we don’t think twice about purchasing something with Tide or Golden Fluff branding on it because those brands have earned market credibility. This highlights how important trademark protection is. Trademarks that can be registered include anything that helps customers identify who they’re doing business with—a business’s name, logo, or even the distinctive fonts and colors used on packaging.
Here’s the Schmaltz
The little ™ symbol I’ve been including with every mention of Herring Blintz™ notifies people that something is under a proposed trademark protection. While it would be virtually impossible to trademark a generic word like “blintz,” Dovid can probably get registered control from the USPTO for “Herring Blintz™.” Since no one else has claimed or used that wording yet for commerce, there’s a good chance he’d be able to stop anyone from advertising with the same words. With successful trademark registration, the symbol would switch to ® (for “Registered”) and competitors would have to call their product simply fish blintzes. Or maybe they’d trademark “Schmaltz Blintz®.”
Copyright Conundrums
The final IP category covers copyrights which intersect with people’s lives in many ways. Those who want to copy pages of books or download music clips. School employees or camp volunteers who compose songs or plays or lesson plans. Writers or employees who design or post to company blogs. A group of friends who put out a cookbook. Who owns the rights and future profits? The answer to these questions often don’t seem to matter much, until they do!
Copyright laws protect “original works of authorship” such as books, articles, songs, music, art, graphics, etc. No specific author or composers created music or the alphabet, of course, but the specific configuration of the notes and words are protected. It’s a good thing too because otherwise, why would people put in the significant efforts required to produce creative content? By US law, the owners of copyright enjoy legal protection over control of their content for as long as 120 years!
Copyright Clarity
The law begins with the assumption that the creator of a work owns the copyrights to it. Even if they submit the article or art for publication, the creator owns it unless the publication specifically stipulates otherwise in a written agreement. But the presumption flips if the author is an employee paid to write or produce graphics, etc.; the company that paid for the work will be its owner unless otherwise agreed upon. It gets complicated however when there are multiple creators involved and an entity provided assistance to boot, say, a camp.
Just the Beginning
These kinds of IP questions can arise regarding patents, and trade secrets too. To avoid disagreements, it’s important for people who are creating things to clarify who will own what beforehand. And this article is written primarily from a legal and business perspective, but, as is usually the case, halachah has lots to say on the subject too. As soon as the printing press began running, teshuvos started flying around Europe over the halachic guidelines for IP protection. Clearly, companies, creators, and consumers need to delve further into the many angles of this crucial topic.