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Types of Intellectual Property

by on March 4, 2011

[From my Webnote series]

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“Intellectual property” is an umbrella term that includes many types of legal rights. Lumping them together and calling them IP is fairly recent and done for propagandistic reasons.1

It’s traditionally understood to include “the big four”:

  • patent
  • copyright
  • trademark
  • trade secret

It also includes more modern legal IP rights,2 including:

Reputation rights (protected by defamation (libel and slander) law) are not usually considered IP3 but I think they should be; similar motivations and argument and flaws.

New rights are proposed all the time:

The latest I’ve heard is the proposal by Hank Barry (in a recent appearance on TWiL), former CEO for Napster and now an IP lawyer, who wants to reform copyright law by adding “a right of community in works of authorship.” As he writes: “So, should an author whose work has generated substantial amounts of money as the object or locus for a community have a right to benefit from those economics, even if the economics are one step removed from the sale of a copy of the work?”

Summary of attempts to push for new IP protections:

Update:

From Grok:

Your original question was: “see transcript. Iancu near the end I think mentions various sui generis rights that work well, and some that don’t. Find that part of the discussion, summarize the sui generis rights they are talking about, and find links to discussions and explanations of these.”

Sui Generis IP Rights Discussed by Andrei Iancu

Podcast: IP Watchdog Unleashed with Gene Quinn • Watch the full episode

Relevant section: Approximately 33:48 – 36:18 in the transcript

In this part of the conversation, former USPTO Director Andrei Iancu argues that the traditional one-size-fits-all U.S. patent system is struggling with 21st-century technologies (software, data, AI, etc.). He recommends considering new sui generis (specially tailored) IP rights and points to past U.S. examples — some very successful, one that did not work well.

Successful Examples Highlighted

1. FDA Regulatory Data Exclusivity (Hatch-Waxman & BPCIA)

Separate from patents, this gives market exclusivity based on regulatory data submitted to the FDA:

  • Small-molecule drugs (New Chemical Entities): 5 years
  • Biologics / large molecules: 12 years

It has successfully encouraged expensive R&D while allowing strong generic competition afterward. The U.S. now has ~90% generic prescription fill rate.

FDA Official Page: FDA – Frequently Asked Questions on Patents and Exclusivity
Comparison & Analysis: DrugPatentWatch – Biologics vs Small Molecules Exclusivity

2. Plant IP Protections (Two Distinct Systems)

  • Plant Patents (35 U.S.C. § 161 – USPTO): For asexually reproduced plants (cuttings, grafting, etc.). ~20-year term.
  • Plant Variety Protection (PVP) Certificates (USDA): For sexually reproduced and tuber-propagated plants. 20-year term (25 years for trees/vines).

Both systems have worked well for agricultural innovation.

USPTO Resource: USPTO – Plant Patent Information
USDA Resource: USDA – Plant Variety Protection Program

3. Design Patents (Mentioned as another specialized tool)

Particularly useful in industries like consumer products and fashion for protecting ornamental designs against knockoffs.

Official USPTO Guide: USPTO – Design Patent Application Guide

Example That Has Not Worked Well

Mask Works – Semiconductor Chip Protection Act (SCPA, 1984)

Sui generis protection for the layout/topography of semiconductor integrated circuits. 10-year term, requires registration with the Copyright Office. Created to stop chip copying but has seen very limited use.

Copyright Office Circular: U.S. Copyright Office Circular 100 – Mask Works (PDF)
Registration Info: Copyright Office – Mask Works Registration Brochure

Key Takeaway

Iancu notes that the U.S. already has experience with tailored IP rights. Some (FDA data exclusivity, plant protections) work very well; others (mask works) do not. He urges a national conversation with industry to design appropriate new sui generis protections for data, AI, and other intangible innovations instead of forcing everything into the 18th-century utility patent framework.

Let me know if you would like any part expanded or additional resources.

  1. See Intellectual Properganda. [↩]
  2. See The Mountain of IP Legislation. [↩]
  3. See Jeffrey D. Dunn & Paul F. Seiler, “Trade Secrets and Non-Traditional Categories of Intellectual Property as Collateral,” UNCITRAL, Second International Colloquium on Secured Transactions: Security Interests in Intellectual Property Rights, Vienna, Austria (Jan. 18–19, 2007; https://perma.cc/W688-M4JT), p. 8: “Some jurisdictions, but not the United States, include moral rights as part of their copyright laws. The United States, with one exception, treats these kinds of rights as part of tort law (defamation and unfair competition).” [↩]
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The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.

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