Intellectual Property Frequently Asked Questions.
Patents protect “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” 35 U.S.C. § 101, or in the case of a design patent, “any new, original, and ornamental design embodied in or applied to an article of manufacture,” 35 U.S.C. § 171. A trademark or service mark is a distinctive word, phrase, logo, symbol, or design, or a combination thereof, that identifies and distinguishes the source of goods or services, respectively. A copyright protects creative expression including writing, recordings, artwork, films, software, and architecture. The term of a utility patent is 20 from the date of application. The term of a design patent is 15 years from the date of grant if filed on or after 5/13/2015, or 14 years from the date of grant if filed before then. The term of a trademark can be indefinite, provided that the proper maintenance documents are filed. The term of a copyright is the life of the author plus 70 years.
Proper subject material for patenting can be incredibly diverse, including manufacturing processes and machinery, chemical formulas, cosmetics, computer hardware and peripherals, computer software, electronic circuits, lighting, telecommunications equipment, housewares, hardware, batteries, sporting goods, games, apparel, textiles, tools, machines, vehicle components, engines, agricultural equipment, mining equipment, aeronautical and astronautical designs, nautical designs, scientific apparatus, instrumentation, optics, robotics, weapons, medical accessories and devices, medicines, surgical techniques and apparatus, dental techniques and apparatus, musical instruments, structures, bridges, asexually reproduced plants, non-functional ornamental designs, jewelry, packaging, surface ornamentation, computer generated icons, and vehicle shapes.
Any of following that are used to identify the source of a product or service and to distinguish it from competitors: names, logos, slogans, devices, words, phrases, graphic symbols, container shapes, sounds, colors, titles, and character names.
Proper subject material for copyright protection may include paintings, drawings, sculpture, literature, music compositions, recordings, songs, choreography, plays, crafts, poetry, theses, software, digital media, photographs, movies, video games, videos, radio and television broadcasts, websites, architecture, graphics, and industrial designs.
A provisional patent is essentially a placeholder. It allows an applicant to establish an effective filing date and to use the term “patent pending.” It is never examined and may even be filed without any claims. After 12 months, it expires, during which period of time it is necessary to file a regular utility patent application claiming priority to the provisional patent in order to retain the filing date of the provisional application.
A design patent protects “any new, original, and ornamental design embodied in or applied to an article of manufacture,” 35 U.S.C. § 171. It can include ornamental designs of all kinds, including surface ornamentation. It does not include any functional aspects of the design. The term of a design patent is 15 years from the date of grant if filed on or after 5/13/2015, or 14 years from the date of grant if filed before then.
Marking a product “patent pending” notifies a potential infringer that a patent has been applied for. While there is no right of the applicant to prevent others from making, using, or selling the product until a patent finally issues, use of the term “patent pending” puts a potential infringer on notice that an application has been filed. Note that it is critical that the term “patent pending” must not be used unless a patent application is in fact pending.
It depends. The period of pendency from initial filing to issuance can vary widely depending on the type of patent filed and subject matter. For a relatively simple invention that encounters straight-forward prosecution, three years is common. A PCT application that is subject to hard-fought prosecution upon nationalization or continuation, possibly even including appeals, may be pending for six years or more.
In order to recover damages from an infringer, the infringer must have had actual or constructive notice that the product is patented. Constructive notice may be achieved by placing the term “patent” or abbreviation “pat.” on the product, along with the patent number(s). Alternately, the term “patent” or abbreviation “pat.” may be placed on the product, followed by an internet address that lists the applicable patent numbers. Note that it is critical that a product must not be marked as patented, unless a patent has actually issued claiming an embodiment of the invention.