INFORMS Online
Intellectual Property, INFORMS Online
and You
By Matthew Saltzman
This is the first of an intermittent series of columns on issues relating to intellectual property (IP). There have been a number of items in the news recently relating to IP matters that I believe are of concern to INFORMS Online, and also to INFORMS members as professionals (as well as consumers) and to their employers. In this series, I will provide some background on various IP issues and how they relate to IOL and INFORMS.
As some of these matters are controversial, I will start right out by reminding readers that the opinions expressed in this column are mine alone and do not necessarily represent those of INFORMS, its Board of Directors, staff or volunteers, or OR/MS Today and its staff. While I will certainly attempt to present the issues in a fair and impartial manner, I must disclose that I approach these matters from a particular point of view: as a developer of and advocate for open source software, and as an academic researcher. Of course, I welcome responses representing alternate points of view. Finally, I am not a lawyer, so nothing in these columns should be construed as legal analysis or advice. Most of my research on these matters is based on the writings of other experts in the field. Nevertheless, I hope to acquaint you with the main points of the controversies and indicate where more information can be obtained. This month's column will introduce some basic concepts of IP law.
There are three major areas of IP law: patents, copyrights, and trademarks or servicemarks. For these columns, I will primarily focus on patents and copyrights (and related issues of licensing). The United States Constitution lays out the fundamental principle of American IP law in Article I, Section 8: "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 ..."
Intellectual property differs in one fundamental way from tangible physical property. Transferring physical property from one person to another deprives the transferor of the property; transferring intellectual property does not. If I give you a piece of furniture, I no longer have it in my possession to use or give to someone else. But if I give you an idea, I still have the idea myself.
There is an area where things are less clear cut. If I give you a book, I no longer have the book, but I still have the ideas it contains.
This is not to say that there is no economic impact of transferring intellectual property. Society as a whole benefits from the widespread dissemination of ideas. On the other hand, in order for authors and inventors to have the time and resources to create their works, they generally need to derive some economic benefit that they don't receive if their ideas are freely disseminated. One way to gain financially from intellectual property is to restrict its distribution. This is the motivation for the constitutional charge to Congress.
Generally, the rights of authors are secured by copyright law and the rights of inventors are secured by patent law. The following explanation is from the U.S. Patent and Trademark Office Web site (www.uspto.gov).
What is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
What is a Copyright?
Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of the copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
In future columns in the series, I will look at some current controversies in patent and copyright policy and their impact on IOL and on INFORMS members.
Matthew Saltzman (mjs@ces.clemson.edu) is an associate professor of Mathematical Sciences at Clemson University and the editor of INFORMS Online.
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