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Patents, Copyrights and Trademarks

A patent is an exclusive right conferred by law to an owner of an invention to exclude others from making, using, or selling the patented invention for a limited time. The government grants this temporary monopoly in exchange for a full description of how to make and use the invention. The cost of obtaining a patent depends on the type of invention and the degree of complexity involved. To ultimately receive a patent, the owner of the invention will need to file a nonprovisional patent application. Roughly, the costs may range from about $5,000 to about $7,000 for an extremely simple invention (such as a golf training aid) to more than $15,000 for an invention involving highly complex technology (such as telecommunication technology). Some points to be aware of include the following:
  • Patents only protect you in the jurisdiction in which they are obtained. Therefore, a U.S. patent only prevents people from making, using, or selling the invention or a product that contains your invention in the U.S. If your patent has realistic market opportunities and high economic potential consider patenting it in other countries as well.
  • Be prepared to pay periodic fees to maintain your patent.
  • Patents are only valuable if they are valid and enforceable.

All these factors point to the reason that professional patent attorneys are usually hired. Despite that, you can do some of the work to lower your costs. See Resources below.

Before we begin...a warning on scams  The U.S. Patent and Trademark Office (USPTO) warns all inventors to be wary of scams. Please read the following brochure before dealing with anyone other than the USPTO.
Top Ten Scam Warning Signs: Contact the USPTO Before Getting Burned
 
3 types of patents  There are three types of patents:
  • Utility: A utility patent may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement. For further information, visit http://www.uspto.gov/patents/resources/types/utility.jsp
  • Design: A design patent may be granted to anyone who develops distinctive visual ornamental characteristics for a manufactured item. The design must be a definite pattern or shape, applied to an article of manufacture. An example of a design patent would be a toothbrush manufactured to look like a spaceship, or an ornamental design for a cell phone case. For further information, visit http://www.uspto.gov/patents/resources/types/designapp.jsp.
  • Plant: A plant patent may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
 
Resources  You can find out what patents have been filed that are the same or similar to your product by using Google's search tool.
Patent search tool from Google
You can search and apply for patents online at the Patent and Trademark website: http://www.uspto.gov/patents/index.jsp

  • Please remember that the wording (especially the claims) for patents is critically important to validity and enforceability and that a professional patent attorney should be consulted.
  • Providing a full and detailed description including drawings to your patent attorney can reduce cost.
  • Patent applications are carefully scrutinized and often rejected for revision by the USPTO. Thus, you should budget for prosecution expense (the "back-and-fourth" with the Patent Office) after your application is filed.
 
Questions?  For questions, you can call the U.S. Patent and Trademark Office at: (800) 786-9199.
 
Software concerns  If you have written software (or have employees or independent contractors who have written software), please consult an attorney to discuss whether to patent, copyright, or obtain trade secret protection!
 
Trademark vs Service Marks  Trademarks are generally the words, logos, phrases and symbols used by manufacturers to identify the goods that originate from them. However, trademarks may also include sounds (e.g., the NBC chimes), scents (e.g., a fragrance for sewing and embroidery thread), colors (e.g. "pink" for insulation), and shapes (e.g., a silhouette of an "apple" for computers). Subject to limitations, almost any symbol, name, word, or device capable of distinguishing the source of goods may be used as a trademark.

Service marks are used to identify the source of the services of one individual or organization from those provided by others. Service marks and trademarks function in the same manner except that service marks identify the source of services rather than goods.

 
What to do  You can talk with an attorney experienced in trademark matters or do your own computerized search with help from your county or local law library. There are also professional search services that can do trademark database searches for you or your attorney (typical charge: $300 to $400 for a basic screening search).

Once you have researched the trademark for potential availability, the cost for filing for registration is about $1000 including attorney fees and fees to the U.S. Patent and Trademark Office. You cannot register a trademark unless it is being used in commerce (although you may apply for registration based on an "intent-to-use") and you will lose your trademark protection if you do not continue to use it in commerce. If you use your trademark in multiple states or serve customers in more than one state, you should register the trademark with the U.S. Patent and Trademark Office at: http://www.uspto.gov/trademarks/index.jsp. The trademark registration process can take close to a year.
 
Copyrights  Copyrights protect "tangible expression" such as that found in written documents, songs, recorded performances, computer programs, and art work (including advertising). The cost is very low (about $35 per application to register a work if you do it yourself online) and it is possible for nonprofessionals to do - although the more valuable your work, the more worthwhile it is to have an attorney involved.

Alternatively, a fee for filing an application for registration using paper forms is about $65. To request the appropriate paper copyright registration form, visit: http://www.copyright.gov/forms/.

Appropriate paper forms include:
  • Literary (example: Novels, poetry, articles) (TX)
  • Single Serials (example: Serials, magazines, newsletters, newspapers) (SE)
  • Sound Recordings (SR)
  • Performing Arts (example: Song lyrics) (PA)
  • Visual Arts (VA)
The law is very strict on requiring written agreements if the copyright is assigned to another individual, a partnership, corporation or other entity.

The best practice is to consult with an attorney before commissioning any work or using someone's work.

Questions about the process or the forms? Visit http://www.copyright.gov/

 
Disclosure  The information herein should not be used or relied on as legal advice or opinion about specific matters, facts, situations or issues.

You should consult a lawyer about your particular circumstances before you act on any of the information contained in these pages because the law changes, can vary from jurisdiction to jurisdiction, and may not apply to your situation. This information is intended to assist you in understanding the basics of intellectual property law. It is not a complete guide and should not be considered legal advice.