Overview Of Intellectual Property

Intellectual property is the area of law that deals with unique products of the human mind, made into reality. This could be anything from inventions, songs, works of art, to commercial business names and symbols. These are otherwise known as intangible assets meaning non-physical assets. The concept of intellectual property relates to the notion that certain results of human intellect deserve the same protective property rights that apply to physical property, also known as tangible assets. Companies and individuals should seek legal protections to prevent any unauthorized use of their intellectual property. This is especially important because one’s intellectual property can be a truly valuable asset for individuals and businesses as it prevents others from making and selling the resulting products and can enhance the value of other assets with which it is associated, such as a business’s name. Every intellectual property situation is unique and that is why we are here to help businesses and individuals obtain protection in the following areas:

  • Patents
  • Trademarks
  • Copyrights

Patents

A patent grants an exclusive right to make and use an invention. This means that a patent provides the patent owner with the right to decide how or if the invention can be made and/or used by others for the duration of the patent’s life. In exchange for this right, the patent owner makes all information about the invention publicly available in a document that is published by the USPTO. Unlike trademarks, patents do not last forever. Since 2011, the United States has operated on a “first to file” basis. This essentially means that inventors are in a race to the patent office to file an application. Applications are usually complex, and expensive. Mistakes can ruin an entire application, so it is critical to get things right the first time, which is why our attorneys are here to help. There are also several types of patent applications to consider, depending on the nature of the invention.

Utility Patent

Utility patents may be granted to those who invent or discover any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement of each. These patents last 20 years from the earliest effective filing date.

Plant Patents

A plant patent is granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant. Two types of plants the patent office will not issue a patent for are a tuber propagated plant and a plant found in an uncultivated state. A plant patent lasts for 20 years from the earliest effective filing date.

Design Patents

A design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. An important diction between a design patent and a trade dress is association. Whereas a design patent protects an ornamental design for a single product of manufacture, trade dress operates as a trademark to the image and overall appearance (which can include packaging, the ambiance of a room, etc.) as it relates to a brand. Design patents last for 15 years from the date the patent is actually issued.

Scope Of Protection

The scope of protection for a patent depends on the application filed. Any nationally filed application will provide enforceable protection in only that country. However, disqualifying content for patent applications (“prior art”) can still come from anywhere in the world. Many countries also participate in an international application option as well. This is known as a PCT application (Patent Cooperation Treaty). All countries that are designated in a PCT application will receive protection from the one PCT application.

Trademarks

A trademark is a name, phrase, word, or symbol that is capable of distinguishing the goods or services of one business from those of another. Trademarks are protectable intellectual property rights that we can help you obtain.

Obtaining A Trademark

At the national and state levels, trademark protection can be obtained through registration, by filing and prosecuting an application for registration with the appropriate trademark office, and paying the required fees. At the international level, there are two options: the first involves filing a trademark application with the trademark office of each desired country in which protection is sought. The second international option includes filing an application through the World Intellectual Property Organization’s (WIPO) Madrid System for participating countries. We are here to assist clients through the trademark application and prosecution process. Although it’s possible to submit your application without an attorney, it’s not recommended. Trademark applications can be both tricky and expensive. In addition, application fees cannot be refunded and certain mistakes in an application cannot be undone.

Benefits Of A Registered Trademark

First, a registered Trademark is listed in the United States Patent and Trademark Office’s (USPTO) database of registered and pending trademarks. This provides public notice to anyone searching for similar trademarks. This may help deter others from using your trademark or one too similar to yours. Others will see your trademark, the goods and services on your registration, the date you applied for trademark registration, and the date your trademark registered. In addition, you get to use the federal trademark registration symbol “®” with your trademark to show that you are registered with the USPTO. Second, with proper registration, there is a legal presumption that you own the trademark and have the exclusive right to use it. Third, if there is ever an infringement issue that requires litigation, the registration allows you to bring a lawsuit in federal court. Third, trademark registration will confer an exclusive right to the trademark nationwide. This means that the trademark can be exclusively used by its owner and no others. Exclusivity is a valuable asset, especially in name recognition and branding. This right to exclude allows the owner to license or sell the right (as an asset) to another party for use in return for payment. Without registration, these benefits won’t apply or at the very least, will be limited in geographic scope. This is why it is worth obtaining registration.

Duration Of Protection

A trademark has the potential to last indefinitely, so long as it is maintained properly in the USPTO. To keep a trademark alive, fees are due in back-to-back five-year durations followed by ten-year durations until the user abandons the mark.

Things That Can Be Registered As A Trademark

A word or a combination of words, individual letters, and numbers can perfectly constitute a trademark. In addition, trademarks may also consist of drawings, symbols, three-dimensional shapes, non-visible signs such as sounds or fragrances, and potentially color when used as a distinguishing feature of the trademark.

Copyrights

A copyright protects a creator’s literary and artistic works. This can include books, music, paintings, sculptures, films, ads, maps, etc. Copyright protection extends only to expressions of ideas, and not to ideas themselves. The expression must be original and captured in a reasonably tangible form.

Getting A Copyright

Anyone who creates an original work automatically has the copyright to that work, allowing them to prevent anyone else from using or replicating it. However, the owner can register the work with the United States Copyright Office voluntarily. This significantly helps the owner show they actually have a copyright in the event an infringement situation arises. Our attorneys recommend you register a copyright for this reason and can assist you through the process.

Benefits Of A Copyright

The owner of a copyright receives several exclusive and enforceable rights. These rights include:

  • Reproducing the work in copies.
  • Preparing derivative works based upon the original work.
  • Distributing copies of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
  • Performing the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.
  • Displaying the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work.
  • Performing the work publicly by means of a digital audio transmission if the work is a sound recording.

Length Of A Protection

The current law applies to works that were created on or after January 1, 1978. Such works have a copyright term for the life of the author plus seventy years after the author’s death. If the work is a collaborative or joint work, the term lasts for seventy years after the last surviving author’s death. When it comes to works made for hire, anonymous, or pseudonymous works (think works of a company), the copyright protection term is 95 years from the date of publication or 120 years from date creation, whichever is shorter.

Contact SW&L Attorneys Today

If you have an intellectual property-related question, do not hesitate to call our intellectual property law attorneys at 701-297-2890.

Attorney Josh Krank
Josh Krank