Frequently Asked Questions
What is a Patent?
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention. A patent is not a right to practice or use the invention. Rather, a patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date subject to the payment of maintenance fees. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned. There are different types of patents. In the United States for example there is a "utility patent" and a "design patent". A utility patent is the most commonly understood type of patent and in other countries it may be called the same or by a different name such as "patent of invention". A design patent covers only the exact drawing in the patent while a utility patent covers the invention as defined in a set of "claims". In addition in the United States it is possible to file a "provisional application". A provisional application provides a less expensive route to fix the filing date for its content as long as a regular utility patent application is filed within one year.
What is a Trademark?
A trademark is a distinctive sign or indicator used to identify that the products or services with which it is used originate from a particular source, and to distinguish its products or services from those of others. Trademarks rights arise when the trademark is used correctly as a trademark. A trademark can be a design, a picture, a word or words, or a group of letters or a combination of any of them. There is a range of "strength" of a trademark. The strongest trademarks are called "arbitrary" or "fanciful". For example a particular drawing or group of letters which has no relationship to the product would be called fanciful. For example KODAK is fanciful because it is just a group of letters. Also "APPLE" for computers is arbitrary because it has nothing to do with the product. The next level of strength of a trademark is "suggestive". A suggestive trademark is one which does not immediately bring to mind the product but requires some thinking. The next level is called "descriptive". A descriptive mark identifies the product or some feature of the product. There are no legal trademark rights in a descriptive mark; except however in rare cases a descriptive mark can acquire legal trademark rights if the consuming public comes to identify the mark with the product. Finally there is the "generic" mark. A generic mark can never acquire trademark rights; for example the word "APPLE" for apples. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. Trademarks may be "registered". Registration enhances the enforcement power for the mark. Registration must be carefully done because mistakes can nullify the registration and its extra enforcement power and can even make the trademark unenforceable.
What is a Copyright?
Copyright is a form of protection granted by law for original works of authorship. Copyrights come into being when the work is fixed in a tangible medium of expression. There can be copyrights for literary works, musical, dramatic, and choreographed works, pictorial, graphic and sculptural works, motion pictures, and audio visual works, sound recordings, architectural works and software code. Copyrights cover both published and unpublished works. There are actually several exclusive rights under the heading copyright. These include the right of reproduction, making derivative works (such as a film from a book), distribution of copies, performing and displaying publicly. One of the most important acts to enhance the power of copyright is early registration. Often registration occurs only after an infringement is found - that is often too late for the highest damages.
What Could a Private Attorney Do?
Obtaining the optimum protection under the patent, trademark, or copyright law requires the services of an attorney who specializes in those fields. Often, seeking legal help when a dispute arises is too late because the protection may be flawed.
For patents the drafting of the application and pursuing it through the government patent office requires very great skill and experience. Shortcomings and flaws in a patent usually result in the patent being invalid or unenforceable. Moreover obtaining optimum protection can only be accomplished by a qualified patent attorney.
For trademarks the advice of an experienced attorney begins with selecting the mark so as to have a mark with the greatest scope of protection. Also the registration process is sensitive to specific requirements and flaws can result in loss of enforcement rights and even loss of the trademark rights.
Copyrights, similarly, need to be protected with a valid copyright notice and early registration. An experienced specialist attorney should be retained for these purposes.
In each of the cases of patents, trademarks, and copyrights there is the opportunity for vigilance to find infringers and to enforce the rights. These too require the assistance of an experienced specialist.