I have recently completed my thesis (Grupo Gigante: Policy Contradictions of Territoriality), which you are quite welcome to read.  In addition, anyone with an interest in how Sarbanes-Oxley impacts intellectual property management is welcome to review my externship paper, reproduced herein ("Sarbanes-Oxley Impact on Intellectual Property").

As my last step in the LL.M. program, I submitted a paper on U.S. legislation surrounding trademark law and the Cuban embargo, reproduced at ("Challenges to U.S. Trademark Policies under the Cuban Embargo").

There are four primary types of Intellectual Property:

• Patent:  This type of intellectual property covers products and processes.  As it grants the applicant a monopoly on a technology for twenty years, and as after this period the invention is released to the public good, the application requires much detail.

• Copyright:  Given the Napster controversies, this may be the most familiar intellectual property protection.  Though normally associated to books and music, it also can extend to software, photographs, and designs.  Copyright protection is established through the Constitution, as is the protection for patents.

• Trademark:  Perhaps the easiest way to think of trademarks is via brand identity.  The formal function of a trademark is to act as an indicator of source and quality, that is, to allow the consumer to make repeat purchases of items that they prefer and to avoid items that they didn't like the first time.  Trademarks are not established through the Constitution directly, but rather fall under the Commerce powers granted to Congress.

• Trade Secrets:  Think of trade secrets as patents that have never been applied for.  There are several reasons a company may make this choice.  As an example, Coca-Cola never patented their formula, as it would have become public knowledge after 20 years and any beverage maker may have employed it thereafter.  As another example, the trade secret may grant a competitive advantage, but may not meet all the tests for a patent - perhaps it would be considered obvious or not sufficiently novel.

There is a delicate balance surrounding the protection of intellectual property.

On the side of the creators, those people that actively invent, compose, and otherwise, there is an argument that such creativity would be stifled if the creator knew that it could be taken by another without compensation.  There is some merit to this argument, as under general principles, people would choose to be paid for their efforts.  A company may not allocate funds to research if it knows its investment may immediately benefit its competitors.  Likewise, a writer may not choose to spend hours writing a novel if he knows it may be freely reproduced upon release.

On the other side, there is a need to further knowledge via the expansion of present intellectual property.  Whereas company A may commercialize a product, company B may be able to expand upon its utility by the addition (or subtraction) of ingredients.  For many years, hip-hop artists have sampled elements of other songs in their own music, and regardless of individual musical tastes, society wishes to encourage the creation of new artistic works.

The balance is effected through limited terms of protection, and via case law that make  exceptions for some permitted uses.  A patent has a twenty-year year term of protection on the condition that the application contains sufficient detail to allow anyone to replicate the product or process on the day of expiration.  The easiest example of this process involves generic drugs, but a plethora of other examples exist. 

Of course, some companies would choose to maintain a monopoly of an invented product, and they do have a means to do so.  As noted above, Coca-Cola never patented their "secret formula," choosing instead to construct internal controls to keep it from disclosure.  As a result, they have managed to secure sole use for the past century.  The drawback to this approach is that, had a breach occurred and the secret been released, Coca-Cola would not have had the legal recourse available to a patented invention.

Trademarks do not have an expiration date per se, and are instead premised upon the consistent and continual use of a mark to indicate the source and quality of a product.  Although these days we likely associate trademarks to brands, there is an ever-broadening application of trademark law to attach to shapes (the Coca-Cola bottle), colors (the pink of Owens-Corning insulation), and designs (boat hulls).  The purpose of a trademark is to help a consumer identify a genuine good and to therefore guard against another company using their mark to attempt to fool the consumer, that is, passing-off.  To balance this, the law permits use of the mark for commentary (i.e., criticism of a product) and for uses that do not act to confuse the consumer (i.e., a garage advertising that they service Volkswagens).