There are many areas of confusion, many misconceptions, and many questions when it comes to intellectual property and intellectual property rights.
Here, we tackle some of the most common questions and provide some reliable sources of more information.
A utility patent covers the concept or idea behind a device or process, whereas a design patent protects only the appearance of the article. After issuance, a utility patent has a term of 20 years from the date of filing.
A design patent is good for 14 years from the date it issues. A design patent application consists primarily of a drawing, whereas a utility patent application includes drawings accompanied by a detailed text and carefully written claims.
The invention must be new, useful and non-obvious. Most patent applications are rejected on the ground that the invention would have been obvious to an imaginary person skilled in that particular area of technology who is aware of all printed material and patents that have ever been published relating to that particular field.
No. Although sales or other public disclosures of your invention prior to filing a U.S. patent application can cause the loss of foreign patent rights, you may file a U.S. patent application within a year of your first sale, offer for sale, or other public disclosure, whichever comes first.
With the advent of the first to file system, an inventor must also be wary of a parallel inventor filing his or her patent first, thereby precluding the ability of the inventor to get a patent. That's why it's important to consult a knowledgeable patent attorney if yo plan to file an application around or after that date.
Although some patents issue within a few months, a typical patent takes between one and four years to issue, assuming it is ever granted. Some patent applications have remained pending for decades (although the U.S. Patent Office is discouraging such practice).
Yes. Several publications exist to assist inventors in filing their own patent application, including “The Inventor’s Notebook” by Fred Grissom and David Pressman and “Patent It Yourself” by David Pressman. (Nolo Press Books, Berkeley, CA 94710).
Yes. The issues of patentability and infringement are entirely separate. Therefore, one may obtain patent protection for an improvement to a device, yet, to build the improvement and market it in conjunction with the original device would infringe the original patent.
Nothing. The Patent Office plays no role in discovering or prosecuting infringement of valid U.S. patents. The patent owner is entirely responsible for bearing the burden and expense of protecting patent rights.
Yes. The first person to file the application with the Patent Office will be granted the patent – subject to a limited grace period if the first inventor publicly discloses the invention.
No. A patent is issued for any idea that is new, useful, and non-obvious. The issuance of a patent is not an indication that there is any reasonable commercial use for the invention and/or that the invention will be commercially successful.
No. Only the original inventor may apply for a patent.
Yes. Multiple inventors are quite common, and indeed, it is a legal requirement that all contributors to the inventive concept claimed in the patent be named as inventors.
No. Only the true inventor can apply for a patent. However, if the employees develops the invention as part of his or her job duties, the employee generally has a legal duty to assign the entire right in the invention to the employer.
Yes. Method or process patents are quite common, especially in the fields of chemistry, materials and data processing.
Your United States patent will not permit you to prevent someone from manufacturing or using your device abroad, but will prevent the device from being sold or used in the United States, including importing it to the United States, regardless of where it is manufactured.
Yes. Trademark rights are based on the extent of actual use of a mark in commerce, but the federal trademark registration is prima facie evidence of use of the mark throughout the United States.
Yes. By filing a federal trademark application along with the required "intent to use" statement.
No. A corporate name can never take on trademark status until that name is used in association with specific goods and services.
Yes. Trademark infringement occurs whenever two trademarks are “confusingly similar” to each other. So, if the two trademarks are similar enough to confuse the average consumer as to the origin of the products or services, then trademark infringement has probably occurred.
No. State trademark laws vary from one state to another,but generally the state performs only a cursory examination to determine if your mark is similar to other marks registered in that state. Some states perform no examination whatsoever, and it is quite possible to obtain a state trademark registration for a trademark that is identical to an already existing federally registered trademark. In such a case, a state trademark registration is of little or no value.
Nothing. Copyright protection attaches at the moment the work is fixed in tangible form (e.g., written down). In order to preserve your copyright, you should (but are no longer required to) mark it with a copyright notice, which includes the word “copyright” and or the symbol ©, the year of creation, and your name.
Registering a copyright offers procedural advantages if you should ever attempt to prevent the unauthorized copying of your work.
No. A trade secret loses its status as a secret if it can be discovered by members of the public by inspection and analysis of the product. No action may be taken against anyone discovering the trade secret by such methods.
