US PATENTS & TRADEMARKS

Intellectual property refers to creations of the mind, including such things as artistic works, literary works, inventions, names, images, symbols, and designs used in commerce.

Intellectual property laws benefit the creator of a property, by rewarding that creator for his/her innovation and creativity. Society also benefits from intellectual property laws, as they encourage creativity - allowing the rest of us to benefit from the wide range of products and services that are produced.

PATENTS

As an inventor, you want to protect your invention from unauthorized use and distribution. Under the federal patent law, a patent is given to an inventor in order to exclude others from "making, using, offering for sale or selling the invention" in the United States. Thus, a patent is given to an inventor to protect her invention.

Generally, to receive a patent from the US Patent and Trademark office, the invention must be new, unique, and generally unobvious. There are different patents available depending on the item you wish to patent:

• Utility Patent: Generally, the invention must be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an invention improvement. To qualify for a utility patent, the invention must also be moderately useful.
• Design Patent: Generally, the design must be novel, non-obvious and nonfunctional.
• Plant Patent: Plants that you create can be patented. The plant must be novel and non-obvious.

Naturally occurring substances, laws of nature, ideas, and calculation methods, among other things, cannot be patented.

How to get a Patent

The US Patent and Trademark Office receives applications for patents and makes patent determinations. An inventor must submit an application to the Patent and Trademark Office and attach specific drawings and a plan of the proposed invention. The inventor must also include a fee. The plan of the invention must follow a very rigid and specific form. After the application is reviewed, the Patent and Trademark Office will usually question the applicant as to any objections the office may have.

Patent Infringement

When another party uses your invention, or an invention with similar elements to your invention, they may be liable for patent infringement. In order to demonstrate patent infringement, one must compare the patent's claims and elements with the elements of the device or invention that is suspect. If they match, there is an infringement. An inventor can enforce the patent in a federal court.

TRADEMARKS

A trademark is a word, phrase, logo or other symbol, used to identify a product, the source of a product and the manufacturer or merchant. A trademark is usually used to distinguish one product and its manufacturer from another.

Common Types of Trademarks

• Service Mark: Rather than promoting a product, the service mark promote a particular type of service.
• Trade Dress: A product is sometimes known for it's special packaging, or trade dress.
• Collective Mark: A collective mark is a symbol, word, or phrase used to identify a group, organization or association, and the products, services or members of the group.
• Certification Mark: A certification mark is a symbol or name used to guarantee the quality of another's service or product.

Before you decide to use a particular trademark or name, you should conduct a trademark search to determine whether a similar trademark already exists. If you use a trademark that is similar to, or the same as, another person's registered trademark, you can be held liable for damages and the registered owner's attorney fees.

Generally, a court will presume that the unregistered trademark owner knew about the registered trademark, even if you did not. Trademark attorneys and firms are trained to make a thorough inspection of registered trademarks to prevent this predicament.

Before trying to register a trademark with the Patent and Trademark office, the owner must first put the trademark to use in interstate commerce. Interstate commerce means that the mark must be used on something that crosses state or international lines. A mark will not be registered unless and until it is used in interstate commerce.

US PATENT & TRADEMARK OFFICE

The trademark owner must fill out a form and submit it, along with a fee, to the Patent and Trademark Office. In order for the trademark to be approved, the office must determine that the trademark is not:

• Confusingly similar to or the same as another trademark
• Prohibited or reserved
• Generic
• Overly descriptive

Once the trademark has been approved by the Patent and Trademark Office, it will be registered for a term of ten years. Six years into the ten-year period, the owner must file a form stating that the trademark is still in use. Otherwise, the registration may lapse.