Beverly Berneman, Querrey & Harrow Courtesy of Querrey & Harrow

The current call for a “greener” world will spur creative solutions in the area of architecture and engineering. The following article discusses how the originators of creative solutions can protect their rights in their ideas.

Green Innovation and the Protection of Ideas:

Man’s motivation to build may have originated in the need for comfort. As man’s motivation to build advances, man develops technology to carry out his vision. Take, for example, the current motivation to build with ecological efficiency. This ecological efficiency, or building “green”, has manifested in various forms. Green urban planning involves core concepts of sustainable development, conversation, energy efficiency and indoor environment quality.

The protection of design and innovation through a series of laws is a core concept of the United States Constitution. In order to explore the various forms of protection, we will use the concept of a “green roof.” The newly constructed San Francisco Academy of Science most recently joined other urban “green roofs” in Chicago, Atlanta and Portland.

A “green roof” is a roof of a building that is partially or completely covered with vegetation and soil, or a growing medium, planted over a waterproofing membrane. The advantages of a “green roof” include energy efficiency, increased lifespan of the roof, water recycling and filtering pollutants. The disadvantages include demanding structural standards and the cost of building and maintenance. In order to exploit the advantages and minimize the disadvantages of the “green roof”, architects and engineers will be developing: 

1. Architectural design;
2. Innovative methods;
3. New inventions and technologies;
4. Improvements on existing inventions and technologies; and
5. Any combination of the above.

These creative aspects of “green roofs” can be protected by copyright, patent and trade secret laws.

Copyright Protection for Green Elements:

Copyright Law protects an original design of a building embodied in any tangible medium of expression, such as architectural plans or drawings (Section 102 of the Copyright Act, 17 U.S.C., 101, et seq.). Architectural works include the overall form as well as the arrangement and composition of spaces and elements in the design. Copyright law does not protect standard features or functionally required design elements. Copyrighted works are protected for the life in being of the author plus 70 years. If the work is created by an employee for an employer, the work is protected for 95 years from the date it is first published or 120 years from the date of creation whichever is longer.

Copyright exists from the moment the work is fixed in a tangible means of expression. Therefore, registration is not required in order to claim copyright. However, registration with the United States Copyright is recommended for two primary reasons. First, registration provides notice of the owner’s rights. Second, registration is required in order to commence a legal action in federal court for copyright infringement and to recover statutory damages and attorneys fees.

Copyright Law will protect the design of elements of a green roof. For urban spaces such as museums, parks and housing developments, the unique design can appeal to the general cultural welfare as well as contribute to general public health and the local economy. Original designs have value in their uniqueness. But, the designs need not be one of a kind. The look or design elements of a green roof that go beyond common elements will be protected. The designs must have sufficient minimum creativity to be protected under Copyright Law. Thus, Copyright Law protects architects who design green roofs, preserving the ability to capitalize on their talent.

Patent Protection for Green Elements:

Patents protect new, useful and non-obvious inventions and methods. Congress implemented these protections as a first-to-invent patent legal framework (Title 35 of the United States Code). A patent is a right to exclude others from making, using, selling, and offering for sale a patented device. Patents last for 20 years from the earliest claimed filing date. Unlike copyrights, patents must be registered with the U.S. Patent Office after screening process by a patent examiner.

Green roofs afford many opportunities to create patentable inventions. For instance, an engineer may develop a mechanism for capturing rain water and extracting pollutants to provide the building with drinking water. An innovative method for performing a function may also find protection under U.S. Patent Law. As with copyright protection for designs, patent protection for innovation spurs development by protecting the rights of the inventor.

Trade Secret Protection for Green Elements:

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. Trade secrets are protected by state law rather than federal law. Unlike copyrights and patents, the owner of trade secrets does not register it. Rather, the trade secret remains protected as long as the owner protects it from disclosure.

Although the laws of trade secrets may vary from state to state, trade secrets law involves two common elements. First, a trade secret must be identifiable and not some general idea or concept. Second, the owner must take reasonable measures to keep the trade secret confidential.
The methods of confidentiality or secrecy can depend on many variables such as the type of information, the uses for the information and the business practices of the owner. Typical confidentiality measures include, building security and alarm systems, non-disclosure agreements, “white” rooms for product development and password protected computer programs.

Many times a design or concept that might not be available for patent protection could be protectable as a trade secret. For example, an engineer may develop a formula for increasing energy efficiency through trial and error over time. The formula can be protected as a trade secret as long as it is not readily ascertainable and is kept confidential. Thus, trade secret protection can add to the arsenal for protecting the creative and innovative aspects of a green roof.

Innovative urban planning and building concepts contribute to protecting the environment, conserving resources and reducing running costs. Copyright, patent and trade secret laws protect ownership rights of those who develop these concepts. Thus, technology and the law create a synergy for ecological innovation now and in the future.

Beverly Berneman can be reached by e-mail at bberneman@querrey.com.