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The Next Wave | Vol. 19 | No. 3 | 2012

Intellectual property:
What it is and how it benefits NSA

In an era of rapidly changing technology, intellectual property has become a game changer and an important commodity, even within the government arena. What is intellectual property? Essentially, intellectual property is a creation of the mind that can be sold or copied. The United States Patent and Trademark Office (USPTO) defines intellectual property as "creations of the mind—creative works or ideas embodied in a form that can be shared or can enable others to recreate, emulate, or manufacture them." These creations typically fall into one of four intellectual property categories including patents, trademarks, copyrights, and trade secrets.


As defined by the USPTO

A patent is an intellectual property right granted to an inventor "to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States" for a limited time in exchange for public disclosure of the invention when the patent is granted. There are three kinds of patents including utility, design, and plant patents. They protect devices, methods, chemical formulas, aesthetic designs, and plants. The term of a utility or plant patent is 20 years from the filing date of the patent application. For design patents, however, the term is reduced to 14 years from the filing date of the patent application. In certain cases, the term can be extended due to delay in the patent examination process. (NSA primarily obtains utility patents on devices or methods, but, on occasion, NSA has also pursued design patents for aesthetic designs.)


You may be surprised to hear that NSA seeks patents. However, many of the technologies developed by NSA not only satisfy mission requirements, but also have great potential for commercial use. Following extensive review, NSA may seek patent protection for such technologies as a way to protect and build on the US government's (USG) investment in research and development. Additionally, recent legislative changes will eventually result in the USPTO granting patents to the first inventor to file rather than to the first person to invent. This change will harmonize the US patent system with the patent systems used in almost all other countries. As a result, US government agencies, including NSA, must now take a more aggressive and proactive approach to patents than in the past.

Patent protection allows NSA to license its technology, which brings in funds to support further research and promotes economic development. NSA also has an interest in protecting itself against claims of patent infringement. Occasionally, the USG has invented a technology first but found itself as a defendant in a case of patent infringement because patent protection was not sought at the time of the invention. Seeking patent protection at the time of the invention is the most effective way of reaping the benefits of the USG's investment and of protecting itself from nuisance lawsuits.


As defined by the USPTO

A trademark is a word, phrase, slogan, symbol, design, or a combination thereof, that identifies and distinguishes the maker of a particular product or goods. Rights can be established based on use of a mark in commerce, without registration. Owning a federal trademark registration, however, provides many advantages including a legal presumption of ownership of the mark, the exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration, and the ability to bring an action concerning the mark in federal court. Unlike a patent, the term of a trademark lasts as long as the trademark owner maintains the trademark registration.


NSA's ability to obtain a trademark is often hindered by the requirement that the mark be used in the stream of commerce. This requirement can often be overcome if the mark is or will be used with the public. Two examples of trademarks that NSA has successfully registered are Autoberry® and NetTop®.


As defined by the USPTO

A copyright is a form of protection provided to the authors of "original works of authorship," including literary, musical, dramatic, artistic, sound recordings, and certain other intellectual works whether the works have been published or not. All facts and any titles, names, short phrases, slogans, ideas, or works that have no originality are not copyrightable. At a minimum, copyright owners have the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work, perform the work, and display the work. For works of an individual, the term of a copyright extends for the life of the author plus 70 years. On the other hand, for works of a corporation, the term of the copyright is 95 years from publication or 120 years from creation, whichever expires first.


Usually, a work receives copyright protection as soon as pen hits paper. However, a work created by an NSA employee, or any USG employee, as a part of the employee's official duties is not entitled to copyright protection. Additionally, NSA is required to respect copyright law and must obtain permission to use copyrighted material in most cases. However, there are some exceptions that allow use of a copyrighted work without express permission from the copyright owner. One such exception often relied upon is the Fair Use exception. In determining if a proposed use is a "Fair Use," several factors are weighed including: (1) the purpose of the use, (2) the nature of the work, (3) the amount of the work that will be copied, and (4) the economic impact of the copying on the copyright owner.

Trade secrets

As defined by the USPTO

A trade secret consists of information and can include a formula, pattern, compilation, program, device, method, technique or process. To meet the most common definition of a trade secret, it must be used in business, and give an opportunity to obtain an economic advantage over competitors who do not know or use it. A trade secret holder is only protected from unauthorized disclosure and use which is referred to as misappropriation. If a trade secret holder fails to maintain secrecy or if the information is independently discovered, becomes released or otherwise becomes generally known, protection as a trade secret is lost.


While most corporate entities manage this type of intellectual property, the USG maintains relatively fewer trade secrets. Within the government realm, trade secrets are considered to be Proprietary Information and the USG is required to protect it just as it would any other protected information.

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Date Posted: Jan 15, 2009 | Last Modified: May 9, 2012 | Last Reviewed: May 9, 2012