Business Article - Intellectual Property Advice
Intellectual property (IP) includes such terms as patents, trademarks and copyrights. Therefore, all intellectual property is privileged and protected by the laws that govern it. This article will detail exactly what each of these forms of intellectual property is and will provide the business owner with useful information regarding the said terms.
Patents
“A patent is a government's grant of a property right to exclude others from the making, using, or selling of an invention. Utility patents are for new and useful processes, machines, articles of manufacture, compositions of matter, or any new and useful improvement of these. Design patents are for new, original, and ornamental designs of articles of manufacture. Plant patents are for asexually reproduced, distinct, and new varieties of plants (1).” This makes it unlawful for anyone other than the patent holder to try to reproduce or sell the invention of the patent holder.There are only three types of patents that are grantable in the United States of America; these include utility, design, and plant patents. Each of these patents has a set term that is instituted on the day of the initial filing. Each patent also has a specific cause or reason.
A Utility patent is a patent that “is granted for a new and useful process, a machine, an article of manufacture, or compositions of matters, or any new and useful improvement thereof. Utility patents have a term of 20 years from date of filing (1).”
A Design patent is for the invention of a new design for any article that is manufactured. Design patents hold a term of 14 years from the date of the grant. There are no fees to pay with a design grant, but only one claim is permitted.
A Plant patent is a patent granted to those who have “invented or discovered and asexually reproduced any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state (2).”
The laws also make clear that anything that requires a patent must be new. New is basically defined as not having been previously used by others in the U.S. or showing up in any publications either here or abroad. This item cannot be known to anyone in any country and it can not have been used by anyone in the public for any greater than 1 year prior to the initial application for a patent. That being stated, there are many things that are as yet still undiscovered or not yet thought of. Every day, individuals come up with new inventions or new ways to manufacture an item. Therefore, the trial and error of individualized testing is the only proven way to see if a new manufacturing solution, machine, or article of manufacture is plausible and patentable.
Who is able to apply for a patent? The law says that the only person able to apply for a patent is the inventor. In the case of an inventor’s death, the executors or any legal representatives of the said inventor may apply. If there are two or more inventors, they may both apply for patent jointly.
What are the consequences if there is found to be patent infringement? “Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement (2).”
If this information was helpful or if there is more information that is needed, please view the references at the bottom of the article. There are links provided that can help answer any questions that may arise. This information should have cleared up a majority of the gray areas that anyone may have had regarding patents but there are a few other protected areas that still need to be addressed.
Trademarks
A trademark is something that is viewed everyday and, although most go unnoticed, they are an integral form of the representation of a company. The Arizona State University defines a trademark as: “a word, phrase, symbol, design, or combination of these that identifies and distinguishes the source of the goods of one party from those of others. The mark appears on the product or its packaging. Sometimes a trademark may be referred to as a ‘brand name’ (1).” U.S. Trademarks are regulated by state, and are only registered federally with the U.S. Patent and Trademark Office if they are to be used for interstate commerce or in commerce with any foreign country. There are fees for the use of a trademark but they are very small. For the registration of a trade name the cost is $10.00 for the use of it for a 5 year period and it costs $15.00 for the registration of a service or trademark which can be available for a 10 year period.
Copyrights
A copyright is a type of protection for authors of any form of intellectual work. By definition of Arizona State University it is ultimately “a form of protection provided by the laws of the United States 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 (1).” This ensures that any intellectual work is protected by law for the inventor of such work. This document that you are reading now is actually protected by copyright law in some form. There are certain criteria that one must realize about copyrights; what is protected, what is not protected, and how a copyright is secured are probably the three most important criteria involved in a copyright.What can a copyright protect? There are many things that a copyright can protect. “Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
- literary works;
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- Architectural works (3).”
A copyright does not protect unrecorded or unwritten work. There is no way to protect something that no one can view. If there is something that is important enough to memorize, write it down so that there is some form of protection available. There is no protection for “titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. There is also no protection for Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration and there will be no copyright protection for Works consisting entirely of information that is common property and containing no original authorship (3).”
To have a copyright secured one must only create the work that it is to be secured to. If a person wants to copyright a book, they have to write it. As soon as the work is recorded in some way for the first time, it as copyright protected. Copyrights can also be registered. Registration makes a copyright a public record. And, before there can be any suit filed for infringement, registration must be made. Registration also allows the copyright to be filed with U.S. customs so that it can be protected against possible importation and infringing copies being made.
Regardless of the type of product that a business owner has, it is always good to know the laws and rights that govern the imaginative mind’s creations. Without such protective laws, could we be sure that the writers of esteemed American Literature were indeed the originals? Could we guarantee that the new tomato growing in the garden was indeed discovered by a particular scientist? The most important idea to take away from this information is the idea that there is protection available for the work that we, as humans, live for and dream of. There are laws that protect our long awaited discoveries and laws that protect the still unearthed roaming of the mind.
References:
1.) ASU Libraries Arizona State University2.) United States Patent and Trademark Office
3.) Copyright Office Basics