---
name: ip-protection-overview
description: |
  Compares the four main types of intellectual property protection: copyright, trademark, patent, and trade secret. Explains what each protects, how protection is obtained, duration, registration processes, and when each type applies. Produces a structured comparison to help users identify which protections may apply to their work.
  Use when the user wants to understand intellectual property basics, needs to identify which IP protection applies to their creation, or wants to prepare for a consultation with an IP attorney.
  Do NOT use for filing patent or trademark applications, IP infringement analysis, licensing agreement drafting, or specific legal advice on IP disputes.
license: Apache-2.0
metadata:
  author: foundry-skills
  version: "1.0.0"
  tags: "legal-literacy guide research checklist"
  category: "legal-civic"
  subcategory: "business-legal"
  depends: ""
  disclaimer: "not-legal-advice"
  difficulty: "intermediate"
---
# IP Protection Overview

> **Disclaimer:** This skill provides general legal literacy and educational information to help you understand legal concepts and processes. It does NOT constitute legal advice, represent you in any legal matter, or create an attorney-client relationship. Laws vary by jurisdiction and change over time. Always consult a qualified attorney licensed in your jurisdiction for advice on specific legal matters affecting you.

## When to Use

**Use this skill when:**
- The user has created something -- software, a product design, a brand name, a manufacturing process, creative content, a business method -- and wants to understand what legal protections may apply
- The user is a founder, entrepreneur, or small business owner preparing to launch a product and wants to understand which IP assets to protect before going to market
- The user wants to understand the conceptual differences between copyright, trademark, patent, and trade secret before meeting with an IP attorney, so they can ask informed questions and make better use of billable time
- The user encountered IP terminology in a business context -- a term sheet, a licensing agreement, an employment offer -- and wants to understand what the concepts mean before seeking legal review
- The user needs to understand IP strategy trade-offs (for example: patent vs. trade secret for a manufacturing process, or timing of trademark filing relative to a product launch)
- The user is a freelancer, contractor, or employee trying to understand the general concept of who owns work product they create (without analyzing their specific contract)
- The user operates in the creative industries -- writing, music, design, photography, software development -- and wants to understand how copyright applies to their work generally
- The user is building a brand and wants to understand the difference between registering a business name, a domain name, and a trademark (these are three entirely separate legal concepts)

**Do NOT use when:**
- The user wants to file a patent or trademark application -- this requires a registered U.S. patent attorney or agent (patent bar admission) or trademark attorney and cannot be safely navigated with general guidance alone (use a specialist referral workflow)
- The user suspects active IP infringement and wants to pursue legal action -- this requires litigation counsel and infringement analysis, not general education
- The user wants to draft, review, or negotiate a licensing agreement, IP assignment clause, or co-inventor agreement -- use `contract-clause-explainer` or direct to legal counsel
- The user wants specific analysis of an employment contract's IP ownership provisions -- use `employment-contract-reader`
- The user wants to understand NDA protections for confidential information in a specific business context -- use `nda-clause-explainer`
- The user is asking about copyright infringement they may have committed (for example, using an image they found online) -- this is infringement analysis requiring legal advice, not general IP education
- The user is asking about international IP enforcement or cross-border IP disputes -- the complexity of multi-jurisdictional IP law exceeds the scope of this educational skill
- The user is in a jurisdiction outside the U.S. and asking for specific registration procedures -- while the conceptual framework applies broadly, procedural guidance should come from local IP counsel

---

## Process

### Step 1: Identify the User's Situation Before Presenting Anything

Before launching into IP definitions, gather focused context. Presenting all four IP types in equal depth wastes the user's time if only one or two are clearly relevant.

- Ask: **What exactly did they create or want to protect?** Use specific categories as probes: Is it a brand name or logo? A written work, artwork, or software? An invention or novel process? A proprietary formula, list, or technique?
- Ask: **What is the current status of the thing they want to protect?** Has it been published, sold, publicly demonstrated, or disclosed to anyone outside the organization? "Publicly disclosed" is a legally significant trigger -- especially for patents.
- Ask: **Are they operating as an individual, employee, or business?** This determines work-for-hire applicability (copyright ownership) and whether the business has separate IP interests to consider.
- Ask: **What is their primary country of operation and intended market?** IP rights are entirely territorial -- a U.S. trademark gives zero rights in the EU. Identify jurisdiction upfront so all guidance is anchored to the right legal framework.
- Ask: **What specific concern is driving the question?** Are they worried about competitors copying them? Trying to establish value for investors or acquisition? Preparing for a contract negotiation? The strategic goal shapes which protections matter most.
- Do NOT assume one IP type applies -- a single product or creation can implicate all four simultaneously. The goal of this step is to prioritize, not to exclude.

---

### Step 2: Deliver the Four IP Types with Precision

Present each type with enough specificity that the user understands not just what it is, but what it covers and -- critically -- what it does NOT cover. Misunderstanding the scope of each protection is the most common source of confusion.

#### Copyright

- **What it protects:** Original works of authorship fixed in a tangible medium -- creative writing, musical compositions, sound recordings, artwork, photographs, architectural works, choreography, software source code and object code, audiovisual works, and compilations. "Original" requires only a minimal degree of creativity -- it does not mean novel or new.
- **What it does NOT protect -- and this is critical:** Ideas, facts, concepts, systems, methods of operation, procedures, processes, or discoveries -- regardless of the form in which they are described, explained, or illustrated. The idea-expression dichotomy is the fundamental boundary of copyright. The expression is protected; the idea behind it is not. Two photographers can shoot the same sunset; two programmers can implement the same algorithm.
- **Automatic protection:** Copyright attaches the moment an original work is fixed in tangible form -- typed in a document, saved to a file, recorded on tape. No publication, no registration, no notice required. The copyright symbol (©) is a courtesy notice, not a legal requirement in the U.S. (though it eliminates the "innocent infringer" defense for damages purposes).
- **Why U.S. registration matters enormously:**
  - You cannot file a federal copyright infringement lawsuit until the work is registered (with a narrow exception for live broadcast works)
  - Timely registration (before infringement begins, or within 3 months of first publication) enables statutory damages of $750 to $30,000 per work infringed -- and up to $150,000 per work for willful infringement -- without having to prove actual damages
  - Timely registration also enables recovery of attorney's fees, which can make the difference between a lawsuit being economically viable or not
  - Registration costs $45 for a single work filed online, $65 for paper filing; group registration of published photographs costs $55 for up to 750 works
- **Work made for hire -- the ownership trap:** If a work is created by an employee within the scope of their employment, the employer is automatically the copyright owner -- the employee never holds the copyright. For independent contractors, copyright stays with the creator UNLESS two conditions are met simultaneously: (1) there is a written agreement signed by both parties calling it a work made for hire AND (2) the work falls into one of nine specific statutory categories (contributions to collective works, compilations, translations, supplementary works, instructional texts, tests, test answer material, atlases, and parts of motion pictures or other audiovisual works). If neither condition is met, the contractor owns the copyright even if the client paid for the work -- a fact that shocks most non-lawyers.
- **Duration:** Works created after January 1, 1978 by individuals: life of the author plus 70 years. Works made for hire, anonymous works, and pseudonymous works: 95 years from publication or 120 years from creation, whichever is shorter. Works created before 1978 are governed by complex transitional rules.
- **Fair use:** A defense to infringement, evaluated on four factors: (1) purpose and character of the use (commercial vs. educational, transformative vs. reproductive), (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, (4) effect on the potential market for the work. Fair use is determined case by case -- there is no "10% rule," no "less than 30 seconds" rule, and no automatic exemption for educational use.

#### Trademark

- **What it protects:** Source identifiers -- any word, name, symbol, device, or combination thereof used in commerce to identify the source of goods or services and distinguish them from competitors. This includes brand names, logos, slogans, product packaging (trade dress), colors (in some cases), sounds, and even scents in rare cases. Service marks protect the same things for services rather than goods.
- **What it does NOT protect:** Generic terms (the word "computer" for computers), purely ornamental elements with no source-identifying function, functional product features (those belong to patent law), and terms that are merely descriptive without having acquired distinctiveness through long use.
- **Rights arise from use, not registration:** Unlike patents, trademark rights in the U.S. arise from actual commercial use of the mark in the relevant geographic territory. A business that has used a mark in a regional market for years has common law trademark rights in that territory even without any registration.
- **Why federal USPTO registration matters:**
  - Establishes nationwide constructive notice to all subsequent users -- you don't have to prove later adopters knew about you
  - Creates a legal presumption that the mark is valid and that you own it
  - Grants the right to use the ® symbol (using ® on an unregistered mark is a federal offense)
  - Enables federal court jurisdiction for infringement claims
  - After 5 years of continuous use, the mark can become "incontestable," significantly limiting challenges to its validity
  - Enables customs recordation to block importation of infringing goods
  - Filing costs $250 per class of goods/services (TEAS Plus application) to $350 per class (TEAS Standard); most product companies file in multiple classes, so total costs run $750-$2,100+ just in filing fees before attorney time
- **The trademark strength spectrum -- critical for registration success:**
  - **Fanciful marks** (invented words with no prior meaning -- think of names like Kodak or Xerox): Strongest. Entitled to the broadest protection.
  - **Arbitrary marks** (real words applied to completely unrelated goods -- like "Apple" for computers): Very strong. No connection between the word and the product.
  - **Suggestive marks** (require imagination to connect the mark to the product -- like "Coppertone" for sunscreen): Strong. Protectable without showing secondary meaning.
  - **Descriptive marks** (directly describe a feature, quality, or characteristic -- like "Creamy" for yogurt): Weak. Not registrable without proof of acquired distinctiveness through long commercial use (secondary meaning).
  - **Generic terms:** Not protectable at all. A generic mark can never be registered or enforced.
- **Likelihood of confusion standard:** The key test in trademark law. Two marks create infringement risk if they are similar enough that consumers are likely to be confused about the source. Courts apply the DuPont factors (in the USPTO context) or similar multifactor tests, weighing mark similarity, goods/services similarity, the sophistication of consumers, evidence of actual confusion, and other factors.
- **Trademark search before adoption:** Conduct both a knockout search (USPTO TESS database for exact and near-exact matches) and a comprehensive search (using professional search services that check state registrations, common law uses, domain names, and business directories) before committing to a mark. Adopting a conflicting mark without searching creates infringement liability even if done in good faith.
- **Trademark maintenance:** Unlike copyright, trademark protection is not automatic or permanent. The mark must be (1) continuously used in commerce and (2) actively maintained through renewal filings. File a Section 8 Declaration of Use between years 5 and 6 after registration, and renew every 10 years thereafter. Failure to file = cancellation.

#### Patent

- **What it protects:** Inventions that are novel (not previously known or used anywhere in the world), non-obvious (the invention would not have been obvious to a person of ordinary skill in the field at the time of invention), and useful (has a specific, credible utility). Four patentable subject matter categories: processes, machines, manufactures (physical articles), and compositions of matter -- plus improvements to any of these.
- **Three patent types:**
  - **Utility patent:** Protects the functional aspects of an invention (how it works, what it does, how it's made, or how it's used). Most common type. 20-year term from the filing date (not the grant date). Maintenance fees due at 3.5, 7.5, and 11.5 years after grant; failure to pay = patent expires.
  - **Design patent:** Protects the ornamental, non-functional appearance of a functional article. If a product's visual design is novel and non-obvious, a design patent may be obtained. 15-year term from grant date. No maintenance fees. Significantly cheaper to obtain than a utility patent.
  - **Plant patent:** Protects asexually reproduced, distinct, and new varieties of plants. Niche application; not relevant for most users.
- **How to obtain -- the application process:**
  - Draft a patent application with a written specification (enabling disclosure -- detailed enough that a skilled person could practice the invention), drawings (required for most inventions), and claims (the numbered sentences at the end that legally define the scope of protection -- the most critical drafting task in the entire process)
  - File with the USPTO. A provisional patent application is a lower-cost option ($320 small entity filing fee) that establishes a filing date and gives "Patent Pending" status for 12 months, but it must be followed by a non-provisional application within that 12-month window or the filing date is lost entirely
  - The USPTO examination process (prosecution) typically takes 2-4 years, during which a patent examiner issues office actions questioning patentability and the applicant (through counsel) responds
  - Total cost: $5,000-$15,000+ for a straightforward utility patent (attorney fees + filing fees); $15,000-$30,000+ for complex inventions in crowded fields
- **Critical timing rule -- the public disclosure trap:**
  - In the U.S., the America Invents Act (AIA) provides a 1-year grace period: you can file a patent application within 1 year after the first public disclosure, sale, offer for sale, or public use of the invention. After 1 year, U.S. patent rights are permanently barred.
  - In most other countries (EU, China, Japan, Canada, most PCT countries), there is NO grace period. Any public disclosure before the filing date destroys patentability in those countries -- permanently and without exception.
  - Practical rule: If international protection matters, file a patent application BEFORE any public disclosure. Always.
- **What is NOT patentable:**
  - Abstract ideas, mathematical concepts, and mental processes are not patentable under 35 U.S.C. § 101
  - Laws of nature and natural phenomena cannot be patented
  - Software patents are heavily contested after the Supreme Court's Alice Corp. v. CLS Bank (2014) decision, which invalidated many software patents as "abstract ideas." Software implemented in a way that achieves a specific technical improvement to computer functionality may be patentable; software that merely performs an abstract economic or business function on a computer typically is not.
- **Patent rights are exclusionary, not permissive:** A patent grants the right to EXCLUDE others from making, using, selling, offering for sale, or importing the invention. It does NOT grant the right to practice the invention -- your invention may incorporate technology covered by someone else's existing patent.

#### Trade Secret

- **What it protects:** Any information that: (1) derives independent economic value -- actual or potential -- from not being generally known or readily ascertainable by others, and (2) is the subject of reasonable measures to maintain its secrecy. The scope is deliberately broad: formulas, processes, customer lists, pricing strategies, marketing plans, supplier relationships, source code, algorithms, manufacturing techniques, negative know-how (knowledge of what doesn't work), financial projections.
- **No registration; no government disclosure:** Trade secret protection requires no filing, no registration, no disclosure to any government body. This is the fundamental strategic advantage over patents.
- **How protection is obtained and maintained -- reasonable measures are legally required:**
  - Identify what information is actually a trade secret and document that identification
  - Restrict access on a need-to-know basis; implement technical access controls (passwords, encryption, segmented databases)
  - Execute non-disclosure agreements (NDAs) with every employee, contractor, vendor, partner, or other party with access
  - Include confidentiality obligations in employment agreements and exit procedures (remind departing employees of obligations, conduct exit interviews)
  - Mark confidential documents as "CONFIDENTIAL" or "PROPRIETARY"
  - Secure physical storage for any physical embodiments of the secret
  - "Reasonable measures" is evaluated by courts based on what a reasonable company in similar circumstances would do -- a startup may be held to a different standard than a Fortune 500 company
- **Legal framework:**
  - The **Defend Trade Secrets Act (DTSA)** (18 U.S.C. § 1836, enacted 2016) provides a federal civil cause of action for trade secret misappropriation, enabling federal court jurisdiction
  - The **Uniform Trade Secrets Act (UTSA)** has been adopted in some form by 48 states (New York and North Carolina have their own trade secret statutes)
  - "Misappropriation" means acquisition through improper means (theft, bribery, espionage, breach of a duty to maintain secrecy) or disclosure without consent
  - Remedies: injunctive relief, actual damages (which may include unjust enrichment), and for willful and malicious misappropriation, exemplary damages up to twice the actual damages plus attorney's fees under the DTSA
- **Duration and the permanent loss risk:** Trade secret protection is theoretically infinite -- but it evaporates completely and permanently the moment the information becomes generally known, regardless of how it became known. Once the formula is published -- by a rogue employee, a journalist, a competitor's independent discovery, or a court filing -- trade secret protection is gone forever and cannot be restored.
- **Independent development and reverse engineering are complete defenses:** Unlike patent law, trade secret law does not protect against a competitor who independently develops the same information through their own research, or who reverse-engineers a lawfully obtained product. These are legally protected activities.
- **The patent vs. trade secret decision for processes:**
  - Patent: 20 years of strong exclusive rights, but requires full public disclosure in the application (which becomes searchable and citable after publication, typically 18 months after filing) and costly prosecution
  - Trade secret: Potentially unlimited duration, no disclosure required, no prosecution cost -- but vulnerable to independent discovery and reverse engineering, and protection is permanently destroyed if secrecy fails
  - The canonical example: the Coca-Cola formula has been maintained as a trade secret for over 130 years. A patent would have expired by 1903. The trade secret choice has been enormously valuable precisely because the formula cannot be reverse-engineered from the product.

---

### Step 3: Map the User's Specific Creation to Applicable Protections

After explaining the relevant IP types, build a specific mapping. Most real-world creations implicate more than one IP type -- help the user see the layered protection strategy.

- Identify every protectable element of their creation separately: the name, the visual design, the functional mechanism, the content, the underlying process, the data, the source code, the business method
- For each element, identify which IP type(s) apply and which do not -- and explain WHY each applies or doesn't using the specific legal requirements
- Flag any timing-critical concerns immediately: Has there been a public disclosure? Is there a patent grace period countdown? Has the mark been in use (establishing common law rights) or is it about to launch (establishing first use rights)?
- Note where multiple protections can layer: a smartphone can have utility patents on the processor architecture, design patents on the device appearance, trademarks on the brand name and UI icons, copyrights in the software and marketing materials, and trade secrets in the source code and manufacturing processes -- all simultaneously

---

### Step 4: Address Strategic Trade-offs

Beyond just explaining what each type covers, help the user understand the key strategic decisions:

- **Patent vs. trade secret for a process:** Patent requires disclosure and has a 20-year limit; trade secret is indefinite but fragile. The choice depends on whether the process can be reverse-engineered from the product, the lifecycle of the technology, and the company's competitive strategy.
- **Trademark registration timing:** File before the product launch if possible, or at least conduct a clearance search. Once a conflicting mark is found and you've already invested in branding, the cost to rebrand is far higher than the search would have been.
- **Copyright registration timing:** Register valuable works before licensing or distributing them. Registering after infringement occurs means you can only recover actual damages, not statutory damages -- potentially the difference between a $500 settlement and a $150,000 recovery.
- **Trade secret vs. no protection:** Many companies inadvertently lose trade secret status by failing to take reasonable protective measures. Casual handling of customer lists, unprotected internal pricing sheets, or code repositories without access controls can destroy trade secret status.

---

### Step 5: Identify Timing-Critical Actions

Always check for any urgent actions based on the user's disclosed facts:

- If any public disclosure of a potential invention has occurred, calculate whether the 1-year U.S. grace period is still open and flag international exposure
- If a product launch is imminent, flag the need to file trademark applications and copyright registrations before launch rather than after
- If the user is about to disclose IP to a third party (investor, partner, vendor), flag the need for NDAs before disclosure
- If the user is a contractor completing a project, flag the work-for-hire ownership question and whether a copyright assignment agreement is needed
- If the user is about to hire employees or contractors, flag that employment agreements and IP assignment agreements should be executed before work begins

---

### Step 6: Generate a Targeted Attorney Consultation Checklist

After mapping protections to the user's situation, produce a specific list of questions and documents to bring to an IP attorney. The goal is to make the first attorney consultation maximally productive.

- Frame questions around the user's specific creation and the IP types that apply
- Include document preparation: prior art examples to show an examiner, evidence of trademark use in commerce (photographs, invoices, dated specimens), the specific content to be copyrighted, confidentiality measures already in place
- Include questions about cost, timeline, and maintenance obligations for each relevant IP type
- Include a question about international filing if the user has any international market presence or ambitions
- Flag the specific attorney credential to look for: patent bar admission for patent work, trademark attorney for trademark prosecution, IP transactional attorney for licensing -- these are distinct specializations

---

### Step 7: Produce the Structured Output

Compile everything into the Output Format below. Tailor each field to the user's specific situation -- do not produce generic placeholder text. Every cell in the comparison table should reflect the user's actual creation.

---

### Step 8: Offer Follow-Up Depth on Any Single IP Type

After delivering the structured output, offer to go deeper on any single IP type if the user has follow-up questions. Common follow-up areas:

- Copyright: fair use analysis (conceptual), registration process walkthrough, work-for-hire doctrine in depth
- Trademark: conducting a basic USPTO TESS search, the likelihood of confusion standard, trade dress protection
- Patent: provisional vs. non-provisional applications, the prior art search process, patent claim structure
- Trade secrets: designing a trade secret protection program, what happens at employee departure, the DTSA vs. state UTSA framework

---

## Output Format

```
## IP Protection Analysis: [User's Creation or Business Situation]

> **Disclaimer:** This analysis provides general legal literacy and educational information only.
> It does not constitute legal advice. Consult a qualified IP attorney for advice specific to
> your situation. Laws vary by jurisdiction and change over time.

---

### What You're Protecting
- **Creation/Asset:** [Describe what the user created or wants to protect in specific terms]
- **Current Status:** [Unpublished draft / In active commercial use / About to launch / Recently disclosed to investors / etc.]
- **Primary Jurisdiction:** [Country and state/province if relevant]
- **Timing Concerns:** [Any identified grace period countdowns, launch deadlines, or disclosure events]

---

### IP Protection Comparison Table

| Factor | Copyright | Trademark | Utility Patent | Trade Secret |
|---|---|---|---|---|
| **Relevant to your situation?** | [Yes / No / Partially -- explain] | [Yes / No / Partially -- explain] | [Yes / No / Partially -- explain] | [Yes / No / Partially -- explain] |
| **What it covers here** | [The specific element(s) of the user's creation that copyright would protect] | [The specific element(s) trademark would protect] | [The specific element(s) a utility patent would protect] | [The specific element(s) trade secret would protect] |
| **What it does NOT cover** | [Relevant exclusion for this user's situation] | [Relevant exclusion] | [Relevant exclusion] | [Relevant exclusion] |
| **How protection is obtained** | Automatic on creation; register with U.S. Copyright Office | Use in commerce; file TEAS application with USPTO | File application with USPTO; examination required | Identify secret; implement reasonable security measures |
| **Cost estimate** | $45-$65 per work (online registration) | $250-$350 per class (filing fee) + attorney time | $5,000-$15,000+ (total, including attorney) | $0-$1,000+ (NDAs, access controls, procedures) |
| **Time to protection** | Immediate (automatic) | Immediate common law rights; ~8-12 months for registration | 2-4 years for grant; "Patent Pending" after filing | Immediate upon implementing reasonable measures |
| **Duration** | Life + 70 years (individual creator) | Indefinite with continued use and renewals | 20 years from filing date (utility) | Indefinite -- until the secret is disclosed |
| **Registration required?** | Not required; strongly recommended | Not required; strongly recommended for national rights | Yes -- required to enforce patent rights | No -- protect through secrecy practices |
| **Key strategic consideration** | [The most important factor for this user's copyright decision] | [The most important factor for this user's trademark decision] | [The most important factor for this user's patent decision] | [The most important factor for this user's trade secret decision] |

---

### Applicable Protections for Your Situation (Prioritized)

List only the IP types that are genuinely relevant, ordered by priority for the user's specific situation.

1. **[Most Important IP Type for This Situation]**
   - *Why it applies:* [Specific explanation linking the user's creation to this IP type's requirements]
   - *What specifically it would cover:* [Named elements of the user's creation]
   - *What it would NOT cover:* [Named elements that fall outside this IP type's scope]
   - *Priority action:* [Most urgent specific next step]
   - *Key risk if ignored:* [What happens if the user does not pursue this protection]

2. **[Second IP Type]**
   - *Why it applies:* [...]
   - *What specifically it would cover:* [...]
   - *What it would NOT cover:* [...]
   - *Priority action:* [...]
   - *Key risk if ignored:* [...]

3. **[Third IP Type, if applicable]**
   - [Same structure]

4. **[Fourth IP Type, if applicable]**
   - [Same structure]

---

### Immediate Action Items (Sequenced by Urgency)

**⚠️ Time-Sensitive (Act Within Days to Weeks):**
- [ ] [Most urgent action -- typically tied to a disclosure event, grace period, or imminent launch]
- [ ] [Second urgent action]

**📋 Near-Term (Act Within Weeks to Months):**
- [ ] [Registration filings, search activities, agreement drafting]
- [ ] [Additional near-term steps]

**🔄 Ongoing Obligations:**
- [ ] [Trademark maintenance filings, trade secret access reviews, copyright registration of new works]
- [ ] [Other recurring obligations]

---

### Questions to Bring to an IP Attorney

Frame these as informed questions based on the user's specific situation, not generic inquiries.

**About Registration Strategy:**
1. [Specific question about the user's creation and the most relevant IP type]
2. [Specific question about timing of filings]

**About Ownership:**
3. [Question about who owns the IP -- especially relevant for contractors, employees, or collaborations]

**About Scope and Enforcement:**
4. [Question about the breadth of protection and what competitors could do to design around it]

**About Cost and Timeline:**
5. [Question about the total cost and time to obtain protection, including prosecution and maintenance]

**About International Strategy:**
6. [Question about whether international filing is warranted and what the PCT or Madrid Protocol costs would be]

---

### What to Bring to Your Attorney Consultation

- [ ] Copies of the work, design, or written description of the invention to be protected
- [ ] Evidence of any prior public disclosures (dates, venues, publications, or emails)
- [ ] Any existing NDAs already executed
- [ ] Evidence of commercial use if seeking trademark protection (photos, invoices, dated marketing materials)
- [ ] Names of any co-creators, co-inventors, or contractors who contributed
- [ ] Any prior art or competing products you are aware of

---

### Jurisdiction and International Considerations

[Address the user's specific jurisdictional situation. If they are U.S.-only, note which U.S. statutes apply. If they have international exposure, note the Berne Convention for copyright, the Madrid Protocol for trademarks, and the Patent Cooperation Treaty for patents -- and strongly recommend IP counsel with international experience.]
```

---

## Rules

1. **Always present the disclaimer at the top of every output.** IP law is an area where incomplete information can cause serious financial and legal harm. The disclaimer is not boilerplate -- it is a substantive boundary.

2. **Never tell a user whether their specific work qualifies for a specific type of IP protection.** Present the legal requirements and let the user evaluate with professional guidance. Saying "your invention is patentable" or "your logo will definitely get trademark registration" is practicing law, not providing legal literacy.

3. **Never advise a user to file or not to file a specific IP application.** Identify the relevant considerations, costs, timelines, and risks -- but the decision belongs to the user in consultation with a qualified attorney.

4. **Always flag the patent public disclosure timing trap explicitly and prominently whenever the user describes a potential invention.** The loss of international patent rights through a pre-filing disclosure is a one-way, irreversible event. This is the single most time-sensitive issue in all of IP law for innovators.

5. **Always distinguish between copyright protecting expression and not protecting ideas.** This is the most commonly misunderstood boundary in copyright law. Users consistently believe they can copyright an idea, a concept, a style, or a method -- they cannot. The idea-expression dichotomy must be explained clearly every time copyright is discussed.

6. **Always distinguish between trademark rights arising from use vs. registration.** Common law trademark rights exist without registration. Federal registration expands and strengthens those rights but does not create them from scratch. Failing to explain this leads users to believe unregistered marks are unprotected, which is wrong.

7. **Always note the work-for-hire doctrine when discussing copyright in any context involving an employer-employee or client-contractor relationship.** The assumption that "I made it, I own it" is wrong in both the employment context (employer owns it automatically) and frequently wrong in the contractor context (contractor may own it by default without a written assignment). This misunderstanding has caused enormous commercial disputes.

8. **Always specify actual dollar amounts and timeframes for each IP type.** Abstract descriptions of "costly" or "time-consuming" processes are unhelpful. Users need to understand that a copyright registration costs $45-$65, a trademark filing costs $250-$350 per class, and a utility patent costs $5,000-$15,000+. These numbers calibrate expectations and help users decide where to allocate resources.

9. **Always address the possibility of layered IP protection when the user's situation involves a complex creation.** A single product or business can -- and often should -- have multiple types of IP protection applied to different elements simultaneously. Presenting the four types as mutually exclusive leads to under-protection.

10. **Always flag the jurisdiction limitation of every statement of IP law.** U.S. IP law governs the specific rules, costs, and timelines provided in this skill. Users in other countries or with cross-border operations need jurisdiction-specific legal advice. This is especially critical for patent timing (the international grace period issue), trademark coverage (national or regional scope), and trade secret law (which varies significantly by country).

11. **Never present fair use as a reliable permission to use copyrighted material.** Fair use is a defense evaluated case by case by a court. There is no formula, no safe percentage, no safe number of seconds. Users who rely on assumed fair use without legal advice regularly face infringement claims.

12. **Always address the strategic trade-off between patent and trade secret protection for processes and formulas.** These two options are mutually exclusive in a meaningful sense: once you file a patent application, the information will be publicly disclosed. Users making this decision without understanding the trade-off may permanently foreclose their best strategic option.

---

## Edge Cases

### Software IP -- Multi-Layer Complexity

Software simultaneously implicates all four IP types, and each type covers different aspects.

- **Copyright** protects the source code and object code as a literary work (Whelan v. Jaslow; Oracle v. Google established significant complexity around the scope of this protection). The "structure, sequence, and organization" of code may be protectable beyond the literal text.
- **Patents** may protect novel software-implemented processes that achieve a specific technical improvement to computer functionality. Post-Alice (2014), claims framed as abstract ideas running on a general-purpose computer are invalid. Claims that improve the functioning of the computer itself, or achieve a specific technical effect, may survive.
- **Trademarks** protect the software's name, logo, and UI elements that serve as source identifiers.
- **Trade secrets** protect the source code (when not disclosed), internal algorithms, data structures, and engineering techniques.
- Strategy: Most software companies layer all four. Open-source software projects still have trademarks. Commercial software companies treat source code as a trade secret, register copyrights, and may pursue patents on particularly novel algorithms or UI features.
- Do NOT tell the user whether their specific algorithm is patentable post-Alice -- this is a highly contested legal question requiring attorney analysis and prosecution strategy.

---

### The User Has Already Publicly Disclosed a Potential Invention

This is a high-urgency edge case requiring specific and immediate guidance.

- Ask precisely: When was the disclosure made? What form did it take? (Trade show demonstration, published paper, product listing on a website, investor pitch deck, social media post -- all can constitute public disclosure.)
- In the U.S.: If the disclosure was made less than 12 months ago, patent filing is still possible but urgent. Every day of delay increases prosecution time during which competitors can observe the invention.
- Internationally: If international patent protection matters (and for any commercially significant invention, it likely does), pre-filing disclosure may have already destroyed patentability in all non-U.S. jurisdictions that follow absolute novelty rules (EU, China, Japan, Canada, most PCT member states). A patent attorney needs to evaluate immediately whether any PCT or direct national filings can be salvaged.
- Copyright and trademark protection are entirely unaffected by public disclosure.
- Trade secret protection is lost for any aspect of the invention that was publicly disclosed -- that specific information can no longer be a trade secret.

---

### Ownership Disputes: Multiple Contributors or Collaborators

When a creation involves multiple people -- co-founders, contract developers, design studios, academic researchers -- IP ownership becomes complicated.

- **Copyright co-authorship:** When two or more people jointly author a work intending their contributions to be merged into an inseparable whole, they are co-authors and each co-owner can independently license the work (and must share royalties) without the other's consent. This means a co-founder who contributed to the company's software has an independent right to license it to competitors unless a written copyright assignment has been executed.
- **Patent co-inventorship:** Each person who contributed to the conception of at least one claim of the patent is a co-inventor. Each co-inventor in the U.S. independently has the right to practice the invention and license it to third parties without the other inventors' consent (though they must share proceeds). This is catastrophic for companies that have not obtained inventor assignment agreements.
- **The fix:** Employment agreements and contractor agreements must include written IP assignment provisions transferring all IP rights -- including copyright, patents, and trade secrets -- to the company. These agreements should be signed BEFORE work begins. Assignment of already-created IP requires explicit language.
- When handling this edge case, always note that specific ownership questions -- especially involving past work without assignment agreements -- require an attorney review of existing agreements and applicable law.

---

### Freelancers and Independent Contractors -- The Copyright Ownership Trap

This is one of the most practically impactful and consistently misunderstood areas of copyright law.

- The default rule: an independent contractor who creates a work owns the copyright in that work, regardless of whether the client paid for it, unless a valid written work-for-hire agreement or copyright assignment has been signed.
- The nine statutory categories for work-for-hire with contractors are narrow: contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, and an atlas. Custom software, website code, marketing collateral, and standalone illustrations do NOT automatically fall in these categories.
- The practical implication: A company that pays a freelance developer $50,000 to build a custom software platform may own nothing -- the developer retains the copyright unless a written assignment was executed. This has been litigated in numerous high-profile cases.
- When a user asks about who owns their work product: present the work-for-hire doctrine clearly, explain the contractor default rule, and direct them to have any existing or future agreements reviewed by an attorney.

---

### Domain Names vs. Trademarks -- A Persistent Confusion

Users frequently conflate domain name ownership with trademark rights. These are legally distinct.

- Registering a domain name (through GoDaddy, Namecheap, or any registrar) gives you a contractual right to use that domain name through ICANN's domain name system. It is NOT a trademark registration and does NOT create trademark rights.
- Owning a trademark does NOT automatically entitle you to the corresponding domain name.
- Domain disputes are handled through ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), which evaluates whether a domain was registered in bad faith by someone without legitimate rights (cybersquatting). If you have a trademark registration, you are in a much stronger position in a UDRP proceeding.
- Registering a business name with a state secretary of state is ALSO not a trademark registration. A state business registration gives you the right to operate a business under that name in that state -- it creates no IP rights in the name.
- The user should conduct a trademark search AND check domain availability as separate, parallel steps before launching a brand.

---

### International IP -- Priority Filing and Multi-Jurisdiction Strategy

When a user has any international business presence or ambitions, the territorial nature of IP law creates significant complexity.

- **Copyright:** The Berne Convention (179 member countries) provides that works created in one member country are automatically protected in all other member countries under each country's local copyright law. This is the most internationally seamless IP protection -- but enforcement still requires local legal action in each country.
- **Trademarks:** Rights are territorial. A U.S. federal trademark registration provides no rights in the EU, Canada, or China. Options for international filing: (1) file directly in each country (expensive), (2) use the Madrid Protocol (administered by WIPO) to file an "international application" designating multiple countries from a single filing for a base fee plus per-country fees. The Madrid Protocol currently covers 130 countries. A U.S. trademark application can serve as the "home" application for a Madrid filing.
- **Patents:** Rights are entirely territorial. Options: (1) file directly in each country, (2) use the Patent Cooperation Treaty (PCT) -- a single "international application" filed with WIPO that establishes a filing date in all 157 PCT member countries and provides an international search report, but still requires entering national phase (separate national filings with translation costs) within 30 months of the priority date in each target country. PCT filing costs: $1,500-$3,000+ in initial fees, plus $5,000-$15,000+ per country in national phase.
- **Trade secrets:** Protected by domestic law in each country. There is no international trade secret treaty equivalent to the Berne Convention. Contractual protections (NDAs with governing law and choice of forum clauses) are the primary tool for international trade secret protection.

---

### Recipes, Formulas, and Food Products -- Patent vs. Trade Secret Decision

This specific scenario comes up frequently (food entrepreneurs, craft beverage producers, artisans) and involves a specific strategic decision with long-term consequences.

- A recipe or formula can theoretically be patented as a "composition of matter" if it is novel, non-obvious, and useful. However, patent protection requires full public disclosure of the formula in the patent application. Once published (18 months after filing), every competitor can see the exact formula.
- A recipe cannot typically be protected by copyright -- functional information (ingredient ratios, cooking steps) is not protectable expression, though the creative description of a recipe in narrative form may be.
- The dominant strategy for food/beverage formulas: trade secret. Keep the formula confidential, restrict access, execute NDAs with manufacturing partners, and use "split formula" manufacturing (have different facilities produce different components and combine them in-house so no single contractor knows the full formula).
- Design the product label as a separate copyrightable work and file trademark applications for the brand name and logo.
- The trade secret strategy works only for formulas that cannot be reverse-engineered from the finished product -- a food scientist with access to the product may be able to identify the ingredients and approximate ratios. Consider whether your formula is actually reverse-engineerable before assuming trade secret protection is durable.

---

### Early-Stage Startups and IP Asset Building Before Fundraising

Investors -- especially institutional venture capital -- conduct IP due diligence before investing. IP ownership gaps are a common deal-killer.

- All founder IP contributions must be formally assigned to the company entity before fundraising. "I contributed the technology I developed" is not sufficient without a signed IP assignment agreement or technology transfer agreement from each founder.
- All employee and contractor work product should be covered by written IP assignment agreements. Standard startup employment offers include a Proprietary Information and Inventions Agreement (PIIA) that assigns all work product to the company -- if these have not been executed with early employees or contractors, there may be ownership gaps.
- Key registrations to have in place before a Series A: (1) federal trademark application for the primary brand name and product name(s), (2) copyright registrations for key creative assets (website design, software if distributed), (3) any patent applications filed (even provisional applications to establish priority dates).
- Trade secret program: investors want to see that confidential technology is actually being treated as confidential -- access controls, NDA programs, and employee departure procedures all provide evidence of a functional trade secret program.

---

## Example

**User Input:**

> "I've built a mobile app for tracking personal finances. I came up with a unique algorithm for categorizing transactions automatically that I haven't seen anywhere else. The app has a name and logo I designed myself. I showed a demo to investors last month at a pitch event but haven't launched publicly yet. I work alone but I'm about to hire my first developer. What should I protect and how?"

---

**Full Output:**

## IP Protection Analysis: Personal Finance Mobile App

> **Disclaimer:** This analysis provides general legal literacy and educational information only.
> It does not constitute legal advice. Consult a qualified IP attorney for advice specific to your
> situation. Laws vary by jurisdiction and change over time.

---

### What You're Protecting
- **Creation/Asset:** Mobile application for personal finance tracking, including: a proprietary transaction categorization algorithm, the application's source code and UI/UX design, the app's brand name and logo, and the overall app product
- **Current Status:** Development complete; publicly demonstrated at an investor pitch event last month; not yet publicly released to users
- **Primary Jurisdiction:** United States (assumed)
- **⚠️ Critical Timing Concern:** A public demonstration at a pitch event likely constitutes a "public disclosure" for U.S. patent purposes. The 1-year U.S. grace period has already begun running. If the algorithm may be patentable, a patent application (at minimum a provisional application) should be filed within the next 11 months -- sooner is strongly preferred. Internationally, most jurisdictions require filing BEFORE public disclosure -- those opportunities may already be foreclosed. Consult a patent attorney immediately.

---

### IP Protection Comparison Table

| Factor | Copyright | Trademark | Utility Patent | Trade Secret |
|---|---|---|---|---|
| **Relevant to your situation?** | Yes -- code, UI design, logo | Yes -- app name, logo as source identifier | Possibly -- for the categorization algorithm | Yes -- algorithm (as alternative to patent); source code; training data |
| **What it covers here** | The source code (as a literary work), the UI visual design, the original logo artwork, any written content in the app | The app name and logo used to identify the app in the marketplace | The novel, non-obvious, useful aspects of the transaction categorization algorithm as a software-implemented process | The algorithm implementation, the source code, any proprietary training data or scoring models kept confidential |
| **What it does NOT cover** | The idea of automatic transaction categorization, the functional logic of the algorithm, any generic UI elements or standard design patterns | The generic concept of a finance app, descriptive terms, any elements likely to cause confusion with existing fintech marks | Abstract mathematical formulas, broad generic categorization concepts, anything obvious to a skilled developer -- and post-Alice, purely abstract software logic without a technical improvement | Anything already publicly disclosed at the pitch event; anything a competitor could independently develop or reverse-engineer from the app once released |
| **How protection is obtained** | Automatic on creation; file with U.S. Copyright Office for enforcement advantages | Use in app stores = common law rights; file TEAS application with USPTO | File provisional application immediately to preserve priority date; follow with non-provisional application within 12 months | Implement NDA with incoming developer before first line of code is shared; restrict code repository access; document secrecy measures |
| **Cost estimate** | $45-$65 per work registered online | $250-$350 per class (USPTO filing fee) + $500-$2,000 attorney time for search and filing | $320 for provisional (small entity) + $5,000-$15,000+ for non-provisional including attorney fees | $0-$1,000 (NDA drafting, access controls) |
| **Time to protection** | Immediate (copyright exists now); registration takes 3-7 months | Common law rights exist now; USPTO registration: 8-14 months | "Patent Pending" status immediately on provisional filing; grant: 2-4 years | Immediate upon executing NDA with developer and restricting access |
| **Duration** | Life of author + 70 years for source code and design | Indefinite with continued use and renewals every 10 years | 20 years from filing date; not renewable | Indefinite -- until the code or algorithm becomes publicly known |
| **Registration required?** | No, but copyright registration is strongly recommended for the source code and UI before app launch | No, but USPTO registration is strongly recommended before launch to establish nationwide priority | Yes -- patent rights only exist upon grant; provisional secures priority date | No -- protection comes from maintaining secrecy |
| **Key strategic consideration** | Register the source code before app launch so statutory damages are available if a competitor copies the app design | Conduct a trademark clearance search before finalizing the app name -- the fintech space is crowded with registered marks | The pitch event disclosure started the 1-year U.S. clock; international patent options may already be foreclosed; consult a patent attorney this week to evaluate the algorithm's patentability | Executing the developer NDA BEFORE sharing any code or algorithm details is non-negotiable; without it, the developer may have no confidentiality obligation |

---

### Applicable Protections for Your Situation (Prioritized)

**1. Trade Secret (Categorization Algorithm and Source Code) -- Act Immediately**
- *Why it applies:* The algorithm and source code are information that derive economic value from not being known to competitors, and they have not yet been publicly distributed (only described at a pitch, not disclosed in technical detail). Trade secret protection is available immediately.
- *What specifically it would cover:* The technical implementation of the categorization algorithm (the specific logic, weighting, data structures), the source code, any proprietary training datasets or scoring models, and the business logic behind the categorization methodology.
- *What it would NOT cover:* The general concept of transaction categorization (not a secret); anything that could be reverse-engineered from inspecting the app once distributed; anything already technically disclosed at the pitch event.
- *Priority action:* Execute a written NDA with the incoming developer BEFORE sharing any code, algorithm details, repository access, or technical documentation. The NDA should cover all confidential business and technical information, survive termination, and include an IP assignment provision so the developer's contributions belong to you.
- *Key risk if ignored:* Sharing the codebase with a developer who has no confidentiality obligation means the code is not subject to reasonable secrecy measures -- trade secret status may be destroyed or unenforceable. This is the most urgent item before onboarding.

**2. Trademark (App Name and Logo) -- Act Before Launch**
- *Why it applies:* You have a distinctive app name and logo that identify the app as coming from you. Using this name in app store listings constitutes use in commerce, establishing common law rights. Federal registration is critical before public launch in the fintech space, which has an extremely dense concentration of registered marks.
- *What specifically it would cover:* The app name and logo as source identifiers for a financial software application and related services. Filed in International Class 9 (software) and potentially Class 36 (financial services) depending on features.
- *What it would NOT cover:* Generic or descriptive terms that describe personal finance apps in general; functional UI elements (those belong to patent or trade dress analysis).
- *Priority action:* Before launch, conduct a comprehensive trademark clearance search -- both a USPTO TESS search and a broader common law search through a professional search service. File a TEAS Plus application immediately after clearance. Given your investor pitch and upcoming launch, the trademark filing timeline is tight.
- *Key risk if ignored:* Launching under a name that conflicts with an existing registered trademark creates infringement liability and may require a forced rebrand after you've built brand recognition -- a far more expensive outcome than a clearance search would have been.

**3. Patent (Categorization Algorithm) -- Consult Attorney This Week**
- *Why it applies:* A novel, non-obvious method for automatically categorizing financial transactions may be patentable if it achieves a specific technical improvement rather than merely performing an abstract categorization task on
