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Common Questions
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Patents, Trademarks and Copyrights
- What do the terms "patent pending" and "patent applied for" mean?
- What are the benefits of patent protection?
- What can be patented?
- Does a U.S. patent provide protection worldwide?
- If two or more persons work together to make an invention, to whom will a patent be granted?
- Can parties jointly own a patent?
- If one person furnishes all of the ideas to make an invention and another employs him or furnishes the money for building and testing the invention, should the patent application be filed by them jointly?
- Can a patent be sold or conveyed?
- Do I need to register my trademark?
- When is it proper to use the federal registration symbol, the letter R enclosed within a circle -- ®, with the mark?
- Is it advisable to conduct a search before adopting mark and filing an application to register a mark?
- What does copyright protect?
- When is a work of authorship protected by copyright?
- What are the benefits of copyright registration?
- Who owns a copyright?
- What is a copyright notice?
- When is a copyright infringed?
- How long does copyright protection last?
- What is a trademark?
- What is a Service Mark?
- What is the difference between a trade name and a trademark?
- When are trademark rights infringed?
- How long do trademark rights last?
- What do the terms "patent pending" and "patent applied for" mean?
They are used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the Patent and Trademark Office.
- What are the benefits of patent protection?
Patents provide the strongest form of intellectual property protection. The owner of a U.S. patent may preclude others from making, using, selling, offering to sell and importing the patented subject matter in the U.S. during the term of the patent, generally 20 years from the effective filing date of the U.S. patent application. Additionally, patents are presumed valid and can only be nullified with clear and convincing evidence that some condition or requirement for obtaining a patent has not been met, which is a difficult burden.
- What can be patented?
Patentable subject matter includes processes, machines, articles of manufacture, compositions of matter, and improvements thereof. A patentable processes is a sequence of steps to perform a task, such as a business method, a software methodology comprised of discrete program steps, and a process of making or using an object, even if the object is well known.
- Does a U.S. patent provide protection worldwide?
No. The rights granted by a United States patent extend only throughout the territory of the United States and have no effect in a foreign country. An inventor who wishes patent protection in other countries must apply for a patent in each of the other countries or in regional patent offices. Almost every country has its own patent law, and a person desiring a patent in a particular country must make an application for patent in that country, in accordance with the requirements of that country. The Patent Cooperation Treaty, which is presently adhered to by over 90 countries including the United States, greatly facilitates the pursuit of patent protection in member countries by providing, among other things, for centralized filing procedures and a standardized initial application format.
- If two or more persons work together to make an invention, to whom will a patent be granted?
If each had a share in the ideas forming the invention, they are probably joint inventors and a patent will be issued to them jointly on the basis of a proper patent application. If, on the other hand, one of these persons has provided all of the ideas of the invention, and the other has only followed instructions in making it, the person who contributed the ideas is the sole inventor and the patent application and patent shall be in his/her name alone.
- Can parties jointly own a patent?
Yes. Patents may be owned jointly by two or more persons, as in the case of a patent granted to joint inventors, or in the case of the assignment of a part interest in a patent. Any joint owner of a patent, may make, use, offer for sale and sell and import the invention for his or her own profit provided they do not infringe another's patent rights, without regard to the other owners, and may sell the interest or any part of it, or grant licenses to others, without regard to the other joint owner, unless the joint owners have made a contract governing their relation to each other. It is accordingly dangerous to assign a part interest without a definite agreement between the parties as to the extent of their respective rights and their obligations to each other if the above result is to be avoided.
- If one person furnishes all of the ideas to make an invention and another employs him or furnishes the money for building and testing the invention, should the patent application be filed by them jointly?
No. The application must be signed by the true inventor, and filed in the Patent and Trademark Office, in the inventor's name. This is the person who furnishes the ideas, not the employer or the person who furnishes the money. The employer may contractually acquire all rights, title and interests in the invention, any patent application based thereon, and any issuing patent. The employer may also contractually require the inventor's cooperation and assistance in pursuing patent protection as well as enforcing and defending any patent rights.
- Can a patent be sold or conveyed?
Yes. A patent is personal property and may be sold to others or mortgaged; it may be bequeathed by a will, and it may pass to the heirs of a deceased patentee. The patent law provides for the transfer or sale of a patent, or of an application for patent, by a signed instrument in writing. Such an instrument is typically referred to as an assignment. Patent assignments should be recorded in the U.S. Patent Office. If an assignment, grant, or conveyance of a patent or an interest in a patent (or an application for patent) is not recorded in the U.S. Patent Office within three months from its date, it is void against a subsequent purchaser for a valuable consideration without notice, unless it is recorded prior to the subsequent purchase.
- Do I need to register my trademark?
No. However, federal registration provides several important advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
- When is it proper to use the federal registration symbol, the letter R enclosed within a circle -- ®, with the mark?
The federal registration symbol may be used once the mark is actually registered in the U.S. Patent and Trademark Office. Even though an application is pending, the registration symbol may not be used before the mark has actually become registered. The federal registration symbol should only be used in connection with goods or services that are the subject of the federal trademark registration. The unregistered trademark and service mark symbols, TM and SM, may be used in connection with unregistered marks, including mark for which applications are pending in the U.S. Patent and Trademark Office.
- Is it advisable to conduct a search before adopting mark and filing an application to register a mark?
Yes. A search may reveal whether a mark is unavailable for use or registration. A preliminary search may be conducted on the World-Wide Web at http://tess.uspto.gov.
- What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
- When is a work of authorship protected by copyright?
Copyright protects a work of authorship the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device.
- What are the benefits of copyright registration?
While copyright registration is voluntary, it is recommended for a number of reasons. For example, the owner of a registered copyright is eligible to pursue statutory damages and attorney's fees against post registration infringers. Additionally, if a work is registered within five years of first publication, the registration is considered prima facie evidence of copyright ownership and validity in a court of law.. Furthermore, registration is generally a prerequisite for bringing a copyright infringement lawsuit.
- Who owns a copyright?
Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. However, in cases of works made for hire, the employer or commissioning party is considered to be the author and initial copyright owner. A work made for hire is a work prepared by an employee (not an independent contractor) within the scope of his or her employment; or a work specially ordered or commissioned pursuant to a signed, written work made for hire agreement in certain specified circumstances.
- What is a copyright notice?
A copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership. Registration is not a prerequisite for using a copyright notice. An appropriate notice consists of three elements: (1) the symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; (2) the year of the first publication; and (3) the name of the copyright owner. To secure additional rights abroad, the notice should also include the phrase "All Rights Reserved." For example:
© 2001 by MTL.COM
All Rights Reserved
- When is a copyright infringed?
Acts of copyright infringement typically include the unauthorized (i) reproduction of a copyrighted work, (ii) public distribution of copies of a copyrighted work, (iii) preparation of a derivative work based upon the copyrighted work, (iv) public performance of a copyrighted work, and (v) public display of a copyrighted work, in the United States during the copyright term.
- How long does copyright protection last?
For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.
For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047. For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured.
- What is a trademark?
A trademark is any word, name, symbol (a logo), device, slogan, package design or combination of these that identifies and distinguishes a specific product from others in the market place. Even a sound or color combination can be a trademark under some circumstances. The term trademark is often used interchangeably to identify a trademark or service mark.
- What is a Service Mark?
A service mark is similar to a trademark, but it is used in the sale or advertising of services to identify and distinguish the services of one company from those of others.
- What is the difference between a trade name and a trademark?
A trade name is used to identify a company or a business and serves as the name of the company or a business. In contrast, a trademark or service mark is used to identify the source of the products or services that the company or business sells or provides. However, a trade name can also function as a trademark or service mark depending upon the context in which it is used. If a trade name is used as more than just the company name and informs consumers where a product or service is coming from, then it is being used as a trademark or service mark. For example, if the name is only used as a noun, ("You can get your widgets from Acme, Inc."), it is a trade name; but if it is also used as an adjective, ("You can get your Acme widgets for $1.00), it is a trademark.
- When are trademark rights infringed?
The unauthorized use in commerce of any copy or colorable imitation of a mark which is likely to cause confusion, or to cause mistake or to deceive is an act of infringement. The infringing mark need not be the same as the asserted mark, and the goods or services upon which the infringing mark is used need not be the same as those upon which the asserted mark is used. Courts typically apply multifactor tests to assess whether the requisite likelihood of confusion, mistake or deception exists.
- How long do trademark rights last?
Trademark rights may exist perpetually, so long as the mark is rightfully and continuously used in commerce in connection with the associated goods or services. A federal trademark registration remains valid for 10 years, subject to specific maintenance requirements, but may be renewed by filing a renewal application within the year before the expiration date of the registration, or within a grace period of six months after the expiration date, with payment of an additional fee.
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