A patent for an invention is a grant issued by the United States Patent Office giving an inventor the right to exclude all others from making, using, selling, offering for sale or importing the invention within the United States, United States territories and United States possessions. There are three types of patents: Utility, Design and Plant Patents.
A utility patent may be granted to anyone on the discovery of any new and useful process, machine, manufacture or composition of matter or any new and useful improvements thereof, which is not obvious to a person of ordinary skill in the art.
The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” is well understood. The term “manufacture” refers to articles that are made and include manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds.
The patent law specifies that the subject matter must be “useful”. The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained on a mere idea or suggestion. The patent is granted on a new machine, manufacture, etc., that embodies the idea. A complete description of the actual machine or other subject matter for which a patent is sought is required.
A design patent may be granted to anyone who invents a new, original and ornamental design for an article of manufacture.
A plant patent may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
The term of a utility patent is twenty (20) years from the filing date of the original Non-Provisional patent application (effective June 8, 1995), except for a Design patent on an ornamental design which has a term of fourteen (14) years from the date of issue of such patent.
A prior art search of the United States Patent and Trademark Office is conducted to determine if the invention is a patentable invention. A search is performed of issued U.S. Patents and U.S. Patent Application Publications related to the invention.
A lawyer who is registered to practice before the United States Patent and Trademark Office can prepare and file the patent application and conduct the proceedings in the United States Patent and Trademark Office to obtain the patent which requires knowledge of patent law and rules and USPTO practice and procedures, as well as knowledge of the scientific or technical matters involved in the particular invention.
A Provisional Application for patent (Provisional Application) is a U.S. national application filed in the United States Patent and Trademark Office. A Provisional Application is not required to have formal patent claims or an oath or declaration. However, it must contain an adequate description of the invention with any drawings to support the subject matter in a later filed non-Provisional patent application. The Provisional Application also should not include an information disclosure (prior art) statement since Provisional Applications are not examined. A Provisional Application provides the means to establish an early effective filing date in a later filed Non-Provisional Patent Application. It also allows the term “Patent Pending” to be applied in connection with the description of the invention.
A Provisional Application for patent has a pendency lasting twelve (12) months from the date the Provisional Application is filed. Therefore, an applicant who files a Provisional Application must file a corresponding Non-Provisional Patent Application during the twelve (12) month pendency period of the Provisional Application in order to benefit from the earlier filing of the Provisional Application.
A trademark is either a word, phrase, symbol or design or any combination thereof which identifies and distinguishes the source of the goods or services of one party from those of another party. A mark for goods normally appears on a product or on its packaging with a designation of TM to alert the public to a claim of rights in the mark. A designation of ® can only be used upon registration of the mark.
A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The service mark normally appears in advertising for services with a designation of SM to alert the public to a claim of rights in the mark. A designation of ® can only be used upon registration of the mark.
The term of a federal trademark registration is ten (10) years with ten (10) year renewal terms. Trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services.
An applicant may apply for federal registration by using a mark in commerce or have a bona fide intention to use the mark in commence and file an Intent-to-Use trademark application. Commerce means all commerce regulated by the U.S. Congress such as interstate commerce or commerce between the U.S. and another country. Use of a mark solely in commerce within a state does not qualify as use of a mark in commerce.
A U.S. trademark/service mark registration provides protection of the mark only in the U.S. and its territories. If protection of the mark is required outside of the U.S., then the owner has to file for protection in each country separately except where there may be a community registration among several countries such as the European Union.
When you have a mark that you wish to protect, it is advisable to have a search of the United States Patent and Trademark Office performed to determine if there is conflicting marks that would result in a likelihood of confusion and ultimately prevent the use of your mark. The United States Patent and Trademark Office, during examination of a trademark application, notifies the applicant if a conflicting mark is found. To find a conflict, the marks do not have to be identical and the goods and services do not have to be the same.
Enforcement of a trademark right is provided by filing suit in the Federal District Court for an injunction and damages including lost profits. However, initially a cease and desist letter is prepared and sent to the alleged violator of trademark or service mark rights.
A copyright is a form of intellectual property protection provided by the laws of the United States to the author of “original works of authorship” including literary, dramatic, musical, artistic, software and certain other intellectual works such as semiconductor chops. This protection is available to both published and unpublished works.
The term is the life of the author plus 70 (seventy) years unless it is a work made for hire which has a term of 95 (ninety-five) years from the date of publication or 120 (one hundred twenty) years from the date of creation, whichever expires first.
Registration is a prerequisite to filing a suit for copyright infringement. If infringement occurs prior to registration, thereafter registration, an injunction and actual damages can be obtained. If infringement occurs after registration, attorneys’ fees and statutory damages may be available in a successful litigation.
Yes, and you can patent computer software and a software process.
A copyright notice is a placement on the work of the word “Copyright” or the symbol © followed by the year of first publication and followed by the name of the copyright owner.
The owner of a copyright has the exclusive right to do and to authorize others to do the following:
(a) reproduce the work in copies or phonorecords;
(b) prepare derivative works based upon the work;
(c) distribute copies or phono records of the work to the public by sale or other transfer of ownership, or by rental, lease or lending;
(d) perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and
other audio-visual works;
(e) display the work publically, in the case of literary, musical, dramatic and
choreographic works, pantomimes, and pictorial, graphic, or sculptural works including the individual images of a motion picture or other audiovisual work; and
(f) perform the work publicly (in the case of sound recordings) by means of a digital audio transmission.
A trade secret has been defined by statute as anything tangible or intangible, or electronically kept or stored, which constitutes, represents, evidences, or records a secret scientific, technical, merchandising, production or management information design, process, procedure, formula, invention, or improvement (Mass. Gen. Laws ch. 266, section 30(4)).
The relevant factors in determining whether information is secret are as follows:
(a) the extent to which the information is known outside of the business;
(b) the extent to which it is known by employees and others involved in the business;
(c) the extent of measures taken by the employer to guard the secrecy of the information;
(d) the value of the information to the employer and to his competitors;
(e) the amount of effort or money expended by the employer in developing the information; and
(f) the ease or difficulty with which the information can be properly acquired or duplicated by others.
An owner of a business should have all employees sign a non-disclosure agreement immediately upon hiring or soon thereafter. The owner should require that all company documents be turned in to the business especially those containing invention disclosures, trade secrets, customer lists and financial information when an employee leaves. Before the employee leaves the business, the employee should be reminded of the obligations under the non-disclosure agreement. Further, the owner must restrict access to trade secret documents and keep such documents in a locked cabinet or locked room along with a list identifying the trade secret documents. Also, before an employee can publish an article or give a speech, review and approval by a supervisor or the owner should be required to prevent accidental disclosure of trade secrets.
Estate planning is a responsible action to learn how your monetary assets can be managed to utilize tax exemption while you are earning. Tax exemption can allow opportunities to transfer large amounts of wealth during your lifetime or after.
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property at death.
A trust is a relationship whereby property is held by one party for the benefit of another.
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