Patent Basics – US Law
A United States patent is a property right granted by the Government of the United States to an inventor. Such a patent is effective in the USA, its territories and possessions.
There are three types of patents:
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof (term = 20 years from filing date);
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture (term = 14 years from the date the patent is granted); and
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant (term = 20 years from filing date).
A patent grants the right to prevent others from making, using, selling or offering for sale the invention throughout the USA, its territories and possessions. The patent also grants the right to prevent others from importing the invention into the United Sates. The patent is granted for a limited time in exchange for public disclosure of the invention.
To get a patent, the invention/discovery must be new and useful and cannot be obvious variations of known technology.
A patent will likely be unavailable for any application filed for an invention more than one year after the invention has been “made public.”
A patent cannot be obtained for laws of nature, abstract ideas or physical phenomena.
The US Government does not enforce an inventor’s patent rights. Once the patent is issued, the patentee must enforce the patent without the aid of the USPTO.
Trademark Basics – US Law
A trademark typically protects brand names and logos used on goods and services. A trademark identifies goods as being from a particular source.
A trademark includes any word, name, symbol, sound, color, design, or any combination thereof, used or intended to be used to identify and distinguish the goods of one seller or provider from those of others, and to indicate the source of the goods.
A service mark is the same as a trademark except that it relates to the source of a services rather than products.
Although United States federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant’s claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration.
Use of a domain name only as part of a web address does not qualify as source-indicating trademark use, though other prominent use apart from the web address may qualify as trademark use.
Registration of a domain name with a domain name registrar does not give any trademark rights.
Similarly, use of a business name does not necessarily qualify as trademark use, though other use of a business name as the source of goods or services might quality it as both a business name and trademark.
The USPTO does not “police” the use of marks. While the USPTO attempts to ensure that no other party receives a federal registration for an identical or similar mark for or as applied to related goods/services, the owner of a registration is responsible for bringing any legal action to stop a party from using an infringing mark.
Copyright Basics – US Law
Copyright is a form of protection provided by US law to the authors of “original works of authorship” fixed in any tangible medium of expression. The manner and medium of fixation are virtually unlimited. Copyright covers both published and unpublished works.
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a “copy or a phonorecord for the first time.” However, registration establishes a public record of the copyright claim.
Although registration with the Copyright Office is not required to secure protection, it is highly recommended. There are several notable benefits to registering with the Copyright Office.
Under the 1976 Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work. In the case of sound recordings, the copyright owner has the right to perform the work publicly by means of a digital audio transmission. These exclusive rights are freely transferable, and may be licensed, sold, donated to charity, or bequeathed to one’s heirs.
The exclusive rights of the copyright owner, however, are limited in a number of important ways. Under the “fair use” doctrine, a judge may excuse unauthorized uses that may otherwise be infringing.
Trade Secret Basics in the USA
Trade secret protection is an alternative to patent protection. Trade secrets do not expire so protection continues until discovery or loss, while inventions covered by patents are protected for a limited time and are disclosed to the public.
Trade secrets consist of information and can include customer lists, formulas, algorithms, software codes, unique designs and inventions, industrial techniques and manufacturing processes.
To meet the most common definition of a trade secret, the information must be used in business, and give an opportunity to obtain an economic advantage over competitors who do not know or use it.
Trade secret protection laws provide a means for protecting information that is secret, commercially valuable because it is secret, and subject to reasonable steps to keep it secret.
A trade secret holder is protected from misappropriation, i.e. from unauthorized disclosure of the trade secret.
A trade secret that is embodied in a product may be discoverable by others who are able to inspect the product, dissect it, and analyze it (i.e. reverse engineer the product). If a party is able to discover a trade secret in this manner, that party will be entitled to make use of it.
Once a trade secret is leaked to the public, its legal protection ceases to exist. Should a trade secret holder fail to maintain secrecy, or should the trade secret become independently discovered, become released or otherwise become generally known, protection of the trade secret is lost.