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FREQUENTLY ASKED QUESTIONS (FAQ)

Patents

What is a Provisional Patent?

A provisional application for patent is a U. S. national application for patent filed in the USPTO under 35 U.S.C. § 111(b). It allows filing without a lot of formality and does not need a patent claim. It does need to meet the disclosure requirement and must tell how to make and use the invention. It provides the means to establish an early effective filing date for a later-filed non-provisional patent application filed under 35 U.S.C. § 111(a). It also allows the term "Patent Pending" to be applied in connection with the description of the invention.

What is a Design Patent?

A design patent protects the aesthetics of an invention by protecting the overall appearance of the invention and is granted for a new, original and ornamental design for an article of manufacture. The term of a design patent is 14 years from the date of issue. An important issue for a design patent application is how the design is illustrated in the drawings since that will be the basis for the protection.

What does Patent Pending mean?

A non-provisional and/or provisional patent has been filed at the USPTO, but a patent has not yet granted.

What can be patented?

In the United States, an invention is patentable (35 USC §101) if an inventor invents or discovers any new and useful:

  1. process
  2. machine
  3. manufacture
  4. composition of matter or
  5. any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of 35 U.S.Code.  

Other requirements are that the invention must be new, useful and unobvious. Useful is a fairly soft standard, but the invention cannot be a perpetual motion machine, or a mathematical algorith, or a mere theory. The invention must be novel, that is, it must be something that is new, and the invention must not be obvious to a person having ordinary skill in the art to which said subject matter pertains. Also, the patent application must tell how to make and use the invention, and cannot present the invention in any vague and indefinite description. Another requirement is that the best mode must be included. The full requirements are set forth in the Patent Laws.

What is a Non-Provisional Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the US Patent and Trademark Office or USPTO that allows you to prevent others from making using or selling your invention in the United States.

For international patent coverage, patents in nations other than the United States. The term of a non-provisional patent in the United States for current patent filings is 20 years from the effective date on which the application for the patent was filed in the United States. So, the effecitve filing date could be a date on which an earlier related application was filed. US patents, once issued, are subject to the payment of maintenance fees. As noted, the right conferred by the patent grant is to exclude others from making, using, offering for sale, or selling your invention in the United States or importing your invention into the United States. While your invention is set out in the patent, it is the claims of the patent that define the "invention" and the scope of the invention. Thus, the patent does not grant you a right in a positive sense and you must consider the rights granted to others before you to determine if they raise any infringement issues.

Is a patent granted as soon as the application is filed?

The next step after filing in the patent process is the examination of the patent application, which is called the patent prosecution. Patent prosecution is a dialog between the patent attorney and the Patent Examiner, who evaluates the patent application to determine that the application meets the requirements of the patent laws. The patent attorney presents arguments that the claims of the patent meet all of the USPTO requirements (i.e., novelty, usefulness, unobiousness, and the like.). 

Should an Inventor Seek Patent Protection?

Every situation is different, so it recommended that an inventor speaks with a qualified patent attorney. It is always recommended that you use an experienced patent attorney who has dealt with the USPTO on patent inventions and is familiar with the USPTO requirements. 

Copyright

What Is Copyright?

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, 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
  • In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts.

Trademark

What is a Trademark?

A trademark will generally describe both a trademark for goods and a service mark for services. A trademark can be any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.

What is a Service Mark?

As noted above, a service mark, like a trademark, can be any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

What is a Certification Mark?

A certification mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce with the owner’s permission by someone other than its owner, to certify regional or other geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of someone's goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization. (Source: USPTO).

What is a Collective Mark?

A collective mark is a trademark or service mark used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization. (Source: USPTO).

When can the TM or SM symbol be used?

The TM and/or SM symbol can be used whether or not there is a federal trademark registration. In offering goods or services, the TM symbol denotes a trademark indicating the origin of the goods or services, while the SM symbol denotes a service mark indicating the origin of the goods or services.

When can the ® ("Circle + R") be used?

The indicia of registration, or ®, can be used once the trademark or service mark is registered, and it is used for both trademarks and service marks

What if my Trademark is Descriptive?

Toggle Marks that are distinctive, by virtue of their unique characteristics or their long and exclusive use, are registerable on the Principal Register at the USPTO.  Marks that are primarily merely descriptive are not registerable on the Principal Register.  But, descriptive marks, which are actually being used, can be registered on the Supplemental Register at the USPTO.  Marks on the Supplemental Register do not have the same rights as those on the Principal Register, but they can be the basis for foreign registrations, can use the indicia of registration, and can be a bar to subsequent (note: other parties') applications for registration.  Also, after five years of continuous use, the mark may have achieved acquired distinctiveness and an application can be made on the Principal Register based upon the acquired distinctiveness.

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NOTICE: This website provides general information only, not legal advice. You should not act upon this information without independent legal counsel.