Frequently asked questions about patents

A patent is a property right granted by the Government of the United  States of America to an inventor "to exclude others from making, using,  offering for sale, or selling the invention throughout the United States  or importing the invention into the United States" for a limited time  in exchange for public disclosure of the invention when the patent is  granted. 

Utility patents provide protection for a new, nonobvious and useful:

• Process
• Machine
• Article of manufacture
• Composition of matter
• Improvement of any of the above

In addition to utility patents, encompassing one of the categories  above, patent protection is available for (1) ornamental design of an  article of manufacture or (2) asexually reproduced plant varieties by  design and plant patents. 

 The preparation of an application for patent and the conducting of  the proceedings in the United States Patent and Trademark Office to  obtain the patent is an undertaking requiring the knowledge of patent  law and rules and Office practice and procedures, as well as knowledge  of the scientific or technical matters involved in the particular  invention.

Inventors may prepare their own applications and file them in the  USPTO and conduct the proceedings themselves, but unless they are  familiar with these matters or study them in detail, they may get into  considerable difficulty. While a patent may be obtained in many cases by  persons not skilled in this work, there would be no assurance that the  patent obtained would adequately protect the particular invention. 

A patent may be applied for only in the name(s) of the actual inventor(s). 

A search of all previous public disclosures (prior art) including, but not limited to previously patented  inventions in the U.S. (prior art) should be conducted to determine if  your invention has been publicly disclosed and thus is not patentable. A  search of foreign patents and printed publications should also be  conducted. While a search of the prior art before the filing of an  application is not required, it is advisable to do so. A registered  attorney or agent is often a useful resource for performance of a  patentability search.  

No.  However, it is very important that you do not tell anyone else about your  invention prior to applying for a patent.  Public disclosures can make your patent invalid. 

• You can file directly in the country of choice;
• You can defer the costs of above option by filing an application under the Patent Cooperation Treaty (PCT); or 
• You can file a utility patent application in the U.S. and within 12 months from filing do either option listed above.

The practice of sending a copy of your invention to yourself is  sometimes called a “poor man’s patent.” There is no provision in the  patent law regarding any such type of protection, and it is not a  substitute for applying for a patent. 

You should immediately contact a patent attorney.  Most states have individual laws setting forth strict requirements regarding patent cease and desist letters.  Failure to meet those requirements prior to contacting an infringer could expose you to financial liability.

A trademark is any word, phrase, symbol, design or combination  thereof that identifies a source of goods or services.  A mark that  identifies services is sometimes known as a "service mark," though it is  often used interchangeably with "trademark." 

An attorney who is licensed to practice law in the U.S. and  experienced in trademark law can advise you about many important legal  issues. These include:

• Determining if your chosen trademark can be legally protected
• Determining the appropriate filing basis for your trademark application
• Preparing and filing a trademark application with the USPTO that is complete and accurately identifies your goods and services
• Selecting an appropriate specimen that shows how your trademark is used in commerce
• Responding to questions and refusals to register your trademark from a USPTO trademark examining attorney
• Helping you understand the scope of your trademark rights and the best ways to enforce them
• Defending against challenges brought by others against your trademark
• Preparing and filing documents with the USPTO to maintain your registration.
• Although USPTO trademark examining attorneys can provide  information about the federal registration process, USPTO employees  cannot give you legal advice.

 If someone registers a similar trademark with the  USPTO before you do, they can potentially block your trademark from  registering.  In addition, even when similar trademarks aren’t federally registered, they could still prevent you from using and/or  registering your trademark?  Even worse, they can cause you to end up in a trademark infringement action.

A trademark attorney can advise if your trademark should be available  for your use and registration and decrease the possibility of you having  costly legal problems by conducting a comprehensive clearance search for potentially conflicting trademarks and providing a legal opinion prior to applying for a trademark registration.

 A comprehensive search includes searching the following sources for trademarks that could potentially conflict with yours:

• the USPTO'S database of federally registered trademarks;
• U.S. state trademark registration databases; and
• sources revealing common law rights of unregistered trademarks.

 Copyright is a form of protection grounded in the U.S. Constitution and  granted by law for original works of authorship fixed in a tangible  medium of expression. 

Copyright 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, such as the expression of a system through source code.

Copyright protects original works of authorship, while a patent  protects inventions or discoveries. Ideas and discoveries are not  protected by the copyright law, although the way in which they are  expressed may be. A trademark protects words, phrases, symbols, or  designs identifying the source of the goods or services of one party and  distinguishing them from those of others.

Your work is under copyright protection the moment it is created and  fixed in a tangible form that it is perceptible either directly or with  the aid of a machine or device. 

Registration is highly recommended as it makes the registrant eligible to seek statutory damages and attorney's  fees against infringers. 

The practice of sending a copy of your own work to yourself is  sometimes called a “poor man’s copyright.” There is no provision in the  copyright law regarding any such type of protection, and it is not a  substitute for registration.

Trade secrets are confidential proprietary information that provide a  business with a competitive advantage or actual or potential economic  benefit. 

Unlike patents and trademarks, you do not protect trade  secrets by registering them with the  government. Trade secrets are protectable if:

• the information is one of the types eligible for trade  secret protection (such as a formula, pattern, compilation, program  device, method, techniques, or process);
• the information provides your business with independent  economic value by not being generally known and not being readily ascertainable; and
• you take reasonable efforts to maintain the secrecy of the information, such as requiring NDAs.