Patents, Trademarks & Copyrights

PATENTS, TRADEMARKS & COPYRIGHTS

Patents, trademarks and copyrights are legal devices created to protect inventions, expressions of ideas and commercial expressions. These inventions, expressions of ideas and commercial expressions are generally referred to as intellectual property. Each of these devices is different and is subject to different laws and procedures both nationally and internationally.

Patents protect useful inventions of a functional or design nature.

Trademarks protect words and images used as indicators of source in commercial trade.

Copyrights protect literary, artistic and other kinds of expressions of ideas.

Patents

A patent is a property right. As such, a patent may be sold, assigned or licensed to others. The federal government grants patents in order to encourage inventions by giving inventors a legal monopoly over their inventions for a set period of time. Under the United States system of patents, there are three types of patents: utility patents, design patents, and plant patents. Usually, when we think of patents, we are thinking of utility patents. A utility patent may be obtained for any new process, machine, article of manufacture, or composition of matter, as long as the invention:

Is useful;
Is novel (i.e., new and not previously known by others); and
Would not have been obvious to one of ordinary skill in the field of invention at the time the invention was made.

In the case of a utility patent, the patent holder has the right to exclude others from making, using, and selling his patented invention for a period of 20 years. This 20-year period starts from the date the inventor filed his application for patent.

Design patents protect original ornamental designs for articles of manufacture. Design patents provide protection for 14 years from the date of issuance.

Plant patents may be obtained for asexually reproduced plants that do not occur naturally.

Patents are subject to strict statutory rules establishing periods when inventors must file applications for patents. These periods may be triggered after first public use, sale or offer for sale of an invention. Because of this it is critical that an inventor either not disclose his invention through sale or use or be diligent in seeking help in protecting his invention. If an invention has been publicly used, offered for sale or sold more than one year before a patent application is filed, the inventor is barred from obtaining a patent in the U.S. There is an exception to this rule if the public use (not sale) was primarily experimental.

The foregoing rules apply to patents sought in the U.S. Other nations have different rules that are generally much more strict than those in the U.S. For instance, in the United States the first person to invent (not the first person to apply for a patent) is entitled to a patent, whereas in most other nations, the first person to file a patent application is entitled to the patent. Many countries prohibit any disclosure of the invention prior to filing. Because of the complex nature of the law, it is best to consult a patent attorney or agent before you disclose or publicly sell or use your invention. In the U.S., only a registered patent attorney or agent can prosecute an application for patent for another in the United States Patent and Trademark Office.

You will often see the words "patent applied for" or "patent pending" printed on a product or its packaging. These words indicate that a patent application involving the product has been filed in the U.S. Patent and Trademark Office. These notices create no legal rights, but often discourage others from pursuing a patent by letting them know patent rights are being pursued.

Note also that a U.S. patent provides no protection in foreign countries. However, filing a patent application in the United States before any non-confidential disclosure of the invention can temporarily preserve rights to file an application in other countries. Typically, an inventor who wishes to file for a patent in another country must do so within one year of filing an application for patent in the U.S.

By virtue of having a patent, an inventor can prohibit others from making, using, selling or importing the invention in the U.S. These types of activities are called infringing activities. If an inventor believes that others are infringing his patent, it is up to him to enforce his patent rights. If a lawsuit is filed to enforce patent rights, those found to have infringed the patent can be held liable for lost profits or royalties. In some cases, where willful infringement is involved, treble damages and attorneys fees can be awarded.

Trademarks

A trademark is an indicator of source, and as such is used to distinguish the goods of one person from those of others. In the same way, service marks distinguish the services of one person from those of others. A trademark or service mark may consist of a word, a name, a symbol, a device, or a combination of these. Examples of trademarks are "Xerox" for copiers, and "Honda" for cars. Examples of service marks are "Wal-Mart" for retail store services, and "Ritz-Carlton" for hotel services.

There are different levels of protection for trademarks and service marks. The strongest marks are called “coined” or “arbitrary.” These marks do not suggest or describe the product. An example of a coined mark is "Exxon." It was made-up when first adopted.

“Suggestive” marks are the next strongest type of marks. A suggestive mark suggests the product or service or suggests some characteristic or quality of the product or service. An example of a suggestive mark is “Coppertone” for suntan lotion.

The least protective type of mark is called “descriptive.” These marks are generally not protectable and cannot become valid trademarks.

Trademark and service mark rights are created by using a mark in commerce in connection with goods or services. Both federal law and the law of many states protect marks without formal registration. However, formal registration in accordance with state or federal law provides greater protection to the mark holder. Formal rights under federal law may be established by filing an application for trademark or service mark registration in the U.S. Patent and Trademark Office. Applications for state trademark or service mark registrations are generally filed with the office of the Secretary of State in the state where registration is sought. Both federal and state applications may be based upon actual use of the mark with goods or services. Federal applications may also be based upon a bona fide intent to use the mark with goods or services. A mark registered with the United States Patent and Trademark Office provides constructive notice of the registrant's claim of ownership to the mark. Federal registration also confers on the federal courts jurisdiction to hear infringement lawsuits involving the mark. Once a trademark or service mark is registered with the U.S. Patent and Trademark Office, it may be accompanied by an "R" in a circle, or by some other notice indicating that it is registered.

One seeking to use a trademark or service mark should conduct a search to determine if others have claimed rights in the same or a similar mark.

Copyrights

A copyright protects the particular expression of an idea. A copyright does not protect the idea itself. The copyright law of the United States is designed to promote literary and artistic creativity. Though "writings of authors" typically come to mind as the types of works copyrighted, works such as plays, musical compositions, dramatic works, sculptures, sound recordings and motion pictures can be copyrighted. Even computer programs may be copyrighted. To enjoy copyright protection, a work must be original and it must evidence some creativity. An author that is a person (as opposed to being a company) can obtain copyright protection that lasts for the author's lifetime plus 70 years. A corporation is entitled to a copyright that lasts 95 years from the date the subject work is first published, or 120 years from the date of creation, whichever comes first.

A work that has been created and fixed in a tangible form (written or recorded) is protected by copyright, whether or not it has been published. In general, there is no requirement that a copyright notice be affixed to the copyrighted work. If a copyright notice is applied to the work, it generally consists of the symbol of a "C" in a circle or the word "copyright," the year of first publication, and the name of the owner of the copyright. For sound recordings, the letter "P" in a circle is used instead of "C." Works that are a combination of audio and visual works should bear both symbols. As opposed to patents and trademarks, which are filed in the U.S. Patent and Trademark Office, copyrights are registered with the Copyright Office in the Library of Congress. A copyright registration enables an author to enforce her copyright in a court of law and may entitle the copyright owner to an enhanced damage award by a court.