Patents are granted to inventors for new and useful machines, processes, manufactures, and compositions of matter. In the United States, a patent owner has the exclusive right to make, use, and sell the patented item for as long as twenty (20) years from the date of the patent application, if granted.
The patent system was established by the U.S. Constitution, and the only source of patent rights in the United States is the U.S. Patent and Trademark Office (“PTO”). There are three types of patents: utility patents, design patents, and plant patents. Utility patents are, by far, the most common as they protect mechanical, electrical, and chemical inventions. Design patents, on the other hand, protect only design features and ornamental shapes of useful articles. Finally, plant patents protect asexually reproduced plants, and are relatively rare.
Part of the purpose of the patent system is to promote science and general public knowledge. Accordingly, the concept is to encourage inventors to reveal their secret inventions so that the public will benefit from the knowledge and have an opportunity to build upon that knowledge. In return, the inventor receives a temporary monopoly over the invention, which is enforced by the government. However, the law is designed to limit the granting of patents to true inventions only. For that reason, a patent will only be granted by the PTO if the idea is new, novel, and not obvious. If an idea is already known, or if it would be obvious to a person of ordinary skill in the particular field, then it is not a true invention and a patent will not be granted. A patent application is scrutinized by a PTO Patent Examiner for these minimum qualifications.
The safest course of action is to maintain the secrecy of an invention until a patent application is filed. Indeed, this is a requirement for patent protection in most foreign countries, although the United States allows for a short grace period under some circumstances.
It is important to note that only a Registered Patent Attorney (or Agent) may file a patent application for an inventor, unless the inventor attempts to do so alone. Most general attorneys are not permitted to file a patent application, since Registered Patent Attorneys (and Agents) are required to have an engineering or scientific background and pass a special exam given by the PTO.
To learn more about patents, or to proceed with a patent application, please contact the Firm by e-mail, telephone, or facsimile. We look forward to the opportunity to be of service to you.
A trademark is any word, slogan, or symbol which is used in trade with goods and services to indicate their source of origin and to distinguish them from the goods and services of others. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from offering the same goods and services under a non-confusing mark.
In the United States, trademark rights are created when use of a trademark begins. However, these rights are often limited. Greater rights are available by registering the trademark with the state or federal government. Trademarks used in interstate or foreign commerce may be registered in the U.S. Patent and Trademark Office (“PTO”).
A trademark application can be submitted to the PTO based upon actual use in commerce or a bona fide intent to use the mark in commerce. It is important to prepare the application with the assistance of a law firm experienced in trademark matters. Among other things, many aspects of a trademark application cannot be changed after filing, such that the value of any resulting registration may be irretrievably set by the original application papers. Moreover, once the application is on file, a PTO Examining Attorney will be assigned to scrutinize the application in light of the statutory guidelines for registerability. Throughout the application process, there is a substantial amount of interaction with the PTO Examining Attorney in accordance with some rather convoluted procedural rules, which may involve complex legal issues and concessions that can dramatically affect the statutory trademark rights involved. Indeed, it is possible to receive an official trademark registration that has little or no value in terms of practical trademark protection, such that a trademark attorney should handle the entirety of the process to seek the broadest rights available.
A federal trademark registration carries several benefits and protections under the law. Most importantly, a federal registration constitutes prima facie evidence of the validity of the registration, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the mark in commerce on the goods and services specified in the registration certificate. Also important is the fact that a federal registration constitutes constructive notice of the registrant’s claim of ownership. The owner of a federal registration may file an infringement lawsuit in federal court and seek injunctive relief, triple damages and attorneys fees, as well as other remedies. Additionally, a registrant has the right to request U.S. Customs Officials to seize imported goods bearing an infringing trademark.
Trademarks may also be registered in individual States, which may yield additional benefits even though limited to the particular State. For example, applications in Florida are examiner within a matter of weeks and a Florida registration may be a powerful tool in enforcement litigation because attorney fees are recoverable under a more liberal standard.
International trademark protection is also available by registering a trademark in individual countries or multi-nationally through various treaties and conventions.
To learn more about trademarks, or to proceed with a trademark application at the state or federal level, please contact the Firm by e-mail, telephone, or facsimile.
Copyrights protect works of authorship, such as books, paintings, musical compositions, architectural drawings, and computer programs. The owner of a copyright has the right to control the reproduction and publication of the work, among other things.
Under the current law in the United States and most other countries, copyright protection arises upon completion of a work of authorship. However, these rights are limited, and it is advisable to take additional steps to enhance the copyright protection. There are essentially two steps that should be taken: 1) place the correct copyright notice on the work itself; and 2) register the copyright with the U.S. Copyright Office.
The copyright notice should be included on all copies of a work which leave the author’s possession. A proper notice should include the word “Copyright” (or its abbreviation: a “C” in a circle), followed by the year of publication, and then the name of the owner of the copyright. Thereafter, immediately registering the copyright has several distinct benefits. It is important to prepare the application with the assistance of a law firm experienced in copyright matters, particularly where the applicant is not the exclusive author of the work. Most importantly, a timely registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the registration certificate. Failure to quickly file a copyright application may result in a limitation of remedies against infringement, such as the recovery of statutory damages and attorney fees.
Regardless of the time of application, however, a registration is a prerequisite to filing a lawsuit for infringement. In addition, the owner of a copyright registration has the right to request U.S. Customs Officials to seize imported items that infringe the copyright.
To learn more about copyrights, or to proceed with a copyright application, please contact the Firm by e-mail, telephone, or facsimile. We look forward to the opportunity to be of service to you.