Copyright—protects
original works of authorship that are fixed in any tangible
medium of expression, including writings, musical compositions
or performances, paintings and sculptures, movies and photos,
sound recording, and computer programs.
Some copyright rights exist from the time of creation of
the work; greater rights are acquired by applying copyright
notice on the work and by registering the work with the
Copyright Office.
Trademark—a
name or design used in conjunction with a product that indicates
the source or maker, for example, “Kodak” used
in conjunction with cameras. A Servicemark — a name
or design used in conjunction with a service, for example,
“Photomat” in conjunction with film developing.
Trademark rights are largely based on "common law"
with the common law rule generally being that the first
to use a mark in commerce in conjunction with a good or
service in a geographical market area can prevent later
use by others of confusingly similar marks on similar products
or services in the same geographical market area. There
are exceptions to the general rule. For example, some marks
are so well known and associated with a single company (e.g.
Xerox, or Pepsi) that another could not use the mark on
even un-related products.
Also, the degree of protection afforded
to a Mark varies. Marks "merely descriptive" of
the services (e.g. "SUPER CLEAN LAUNDRY") receive
little or no protection while marks that are "coined"
(e.g. "APPLE" for computers) can get relatively
strong protection.
Federal registration of a mark expands the geographic market
area to the entire nation, For federal registration, there
must be use of the mark in interstate or international commerce.
Beware: obtaining
a fictitious business name or corporate name does not assure
that that the name can be used publicly. It is highly recommended
to do a trademark search before naming a business or product.
- you are not the inventor;
- you have abandoned (are not pursuing
development or sale of) the invention;
- before your date of invention,
the invention was known or used by others (who had not abandoned,
suppressed or concealed it) in this country, or was patented
or described in a printed publication in this country or
a foreign country;
- more than one year prior to the
filing date of your U.S. patent application, the invention
was patented or described in a printed publication in this
country or a foreign country or was in public use, commercial
use, on sale, or offered for sale in this country;
- before the filing date of your
U.S. patent application, the invention was patented by you
in a foreign country on an application filed by you more
than one year (6 months for design patent) prior to the
filing date of your U.S. patent application;
- the invention was disclosed in
a United States patent which issues from an application
filed by another prior to the invention thereof by you;
or
- the differences between the subject
matter sought to be patented and the prior art would have
been obvious to a person of ordinary skill in the pertinent
art at the time the invention was made by you.
- Keep dated and witnessed notes
and drawings
- Certified mail to self is not especially
useful
- Document all stages of development
- Patentability search (not required,
but highly recommended)
- Application must include claims
and full disclosure of the best mode of the invention
- Invention is “patent pending”
after application is filed with USPTO
- Examination of application by
USPTO typically takes 1-3 years
- Amendment and/or argument to overcome
Examiner’s objections may be needed
- Publication 18 months after filing
unless non-publication initially requested
- Allowance and Issuance
- Term of patent: utility 20 years
from filing (with maintenance fees); design 14 years from
issue
- Mechanical devices and manufactured
articles
- Methods—manufacturing or
business
- Chemical compositions
- Design
of an article
- Computer programs
- Organisms (in some cases)
- Asexually reproduced plants
What is Not Patentable?
- General concepts or ideas
- Laws of nature
- Obvious improvements
- Works of art
- Devices known to public
- Useless devices
- Perpetual motion unless with working
model
