UNDERSTANDING PATENTS, TRADEMARKS AND COPYRIGHTS
A patent for an invention is the grant of a property right to the inventor that is issued by the United States Patent and Trademark Office (“USPTO”)
Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.
The right conferred by the patent grant is “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. It is noteworthy that what is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
An invention must meet several requirements to be eligible for a patent. The invention must concern patentable subject matter (section 101). The invention must be novel and the application for a patent on the invention must be timely (section 102). The invention must be non-obvious (section 103). Finally, the invention must be sufficiently documented (section 112).
WHAT IS A TRADEMARK OR SERVICEMARK?
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A Servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and service-mark.
It is essential to understand that Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks that are used in interstate or foreign commerce may be registered with the USPTO.
WHAT IS A COPYRIGHT?
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly; therefore, a copyright protects the form of expression rather than the subject matter of the writing.