OCTOBER 2018 SEEDWORLD.COM / 9 “Patents and PVPs are property rights that are provided through the USPTO or USDA that allow a patent or PVP owner to prevent others from making, using or selling (or importing) an invention,” he says. Patents can be used to protect process, machine, article of manufacture, composition of matter and improvements within any of these; whereas, PVP is used exclusively to protect new varieties of seed or tuber propagated materials. To file for a patent, an innovation must be novel, adequately described or enabled and claimed by the inventor in clear and definite terms. To file for a PVP, a variety must be new, distinct, uniform and stable, and seed deposit must be made. When filing for a patent, unlike when filing for a PVP, the innovation doesn’t have to be distinct; it can be a nonobvious difference, such as a variety with a higher oil content. Weatherly explains that there are two types of patents: utility patents and plant patents. Utility patents are for seed, plants and plant parts, and provide protection 20 years from priority. Plant patents are for asexually reproduced plants only and also provide protection 20 years from priority. PVPs, for sexually reproduced plants or tubers, provide protection for 20 years from issue for plants and 25 years from issue for trees and vines. Less specific to the seed industry are trademarks, copyrights and trade secrets. Trademarks are words, symbols, sounds or devices which serve to indicate the source of seed, plants, fruit or other prod- ucts and services. Think logos and brands, Weatherly says, as these help the consumer to differentiate goods and services in the marketplace. U.S. trademark law is based on the Lanham Trademark Act of 1947, which provides the owner of a trademark the right to prevent others from using the same or a confusing similar mark for the same or similar goods or services. In the United States, trademark rights commence with the use of the mark in commerce. Have you ever wondered when to use the trademark (™) versus the registered (®) symbols? Under common law, the trademark symbol can be used with unregistered marks. Rights are based on its continuous use in commerce and extend only to locations where a mark has been used. Registered marks provide national rights at the time of registration and provide statutory rights; use of the registered symbol is not required. In the United States, there are five categories of trademarks: fanciful, arbitrary, suggestive, descriptive and generic. Weatherly says trademarks can be very valuable to an organization to help it distinguish products and services. His advice: “Be aware of other organizations’ trademarks, and be creative — don’t use varietal names as a trademark.” Protection in the form of copyright can be applied to books, photos, songs, paintings, sculptures, software and webpages — “works of authorship fixed in a tangible medium of expression.” Terms of a copyright vary. Weatherly says it’s usually 70 years after the death of the author; however, for works of cor- porate authorship, it can be 95 years from publication or 120 years from creation, whichever expires first. Seed companies might consider copyrighting photos, websites and marketing materials, Weatherly says, adding that copyright includes graphics, content and visual elements. Use of the copyright symbol serves to give notice to third parties, which may be helpful in damages. Infringement Costs “You can’t go online and take a snapshot of an image and use it as your own; that can be very dangerous and costly,” Weatherly explains. As an example, Weatherly shares that a Maryland federal jury awarded a company $900,000 in damages and $300,000 in statutory damages for its case in which another company had stolen nearly two dozen copyrighted photographs from its website and marketing materials. “It’s important to know where you procured your materials,” Weatherly says. “Don’t just grab photos off the internet.” And last, but not least, is trade secrets: information a company keeps secret to give an advantage over competitors. These can be anything from customer lists and marketing plans to breeding methods and formulations. Trade secrets must comprise three elements. First, it must have the potential for, or some actual, economic value. Additionally, it must not generally be known to the public and it must be reasonably protected, Weatherly says. These five IP tools are just that — specific tools to be used to accomplish specific goals or tasks. They can be used individu- ally or collectively to achieve the desired protection. Weatherly cautions that “protection is not just a piece of paper on a wall.” “You need develop a mechanism to maintain that protection, he says. “As an example, proper licensing allows for an innova- tion to be more broadly used and distributed. As such you must make sure the licensees comply with the agreement. If not, you can lose your rights to the innovation.” SW