Do I Need a Patent?

People cannot just sell an idea for a product. Unless the idea/product is in the public domain, a patent can be necessary to prove the seller owns the product/idea they wish to sell. In other words, why should someone buy something from you if you don’t have the title or deed saying you own the invention.
Design and utility patents give the owner exclusive rights on making, using, and selling an invention in the United States for a limited lifespan.
Utility Patents have a government filing fee of $785 (small entity), $440 (micro entity), with a 20 year life, and cover both function and appearance. Inventions include mechanical devices, electronics, chemical compositions, recipes/formulas and software. Design Patents cover appearance only protection with a government fee of $480 (small entity), $240 (micro entity). Provisional applications are not patents, but do allow one to use the patent pending status for a government fee of $140 (small entity), $70 (micro entity). Provisional applications must be converted into a utility application within one year to obtain a patent. “Patent Pending” can only be used, if one applies for a provisional, utility or design application.
Other legal and government fees necessary during the patent issuance, maintenance process add thousands of dollars to the cost of obtaining a patent. Patents must be applied within one year of their public disclosure or it is too late and patent protection becomes unavailable.
Preliminary internet searches at the USPTO website (www.uspto.gov) can be done for free. However, one cannot rely solely on their results because their databases are limited. Professional searches done at the United States Patent Office in Washington, D.C. can be necessary to give a better determination of what is patentable. The USPTO recommends using a registered patent attorney or a patent agent in obtaining patent protection.

Do I Need a Federal Trademark?

Do I Need a Copyright?

Businesses using or intending (reserving) to use a name nationwide on their products or services should get a federal trademark. A United States Trademark (goods) and service mark (services) is any word, name, phrase, symbol, logo, design, and sound, which identifies and distinguishes the source of the goods or services from another party’s goods/services. A trademark registered by the USPTO is a title/deed recognizing nationwide ownership.

Federal trademarks have a $375 government filing fee ($325 online) per class of goods/services (clothing, paper goods, etc.). Other legal and government fees are assessed during the issuance and maintenance process add extra costs. Renewals are at 5 and 10 year intervals.

Trademarks can be registered by anyone. Trademark owners have the right to prevent another using any word, name, symbol, or device likely to cause confusion with the trademark owner’s mark. Marks being merely descriptive of the goods or services will not be allowed registration. Courts generally recognized federal trademarks to be supreme over state trademarks and over Internet domain names.

​A trademark search is always needed. UCF and the Internet offer free trademark searching. However, one cannot rely on free searches because their databases are limited. Professional searches should be done. Anyone claiming ownership of a mark can use “TM” (for a trademark) or “SM” (for a service mark). The symbol ® cannot be used until the mark is registered (approved by the USPTO). The USPTO requires the owner of their attorney to apply.
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A registered copyright is another type of deed/title identifying the ownership of another form of intellectual property. Copyright registration is through the United States Library of Congress for $85 filing fee by mail and $35 filing fee online, per work.
Copyrights protect fixed tangible original artistic expressions such as literary works, musical works including accompanying words, dramatic works including accompanying music, pantomimes, choreographic works, pictorial, graphic and sculptural works, motion pictures, sound recordings, architectural works and computer program source codes. The works can be published or unpublished.
Copyrights do not protect ideas, concepts, or inventions. Nor do copyrights protect titles, names, short phrases and slogans. Works that do not contain original authorship are not eligible for protection. Calendars, height and weight charts, tape measures and rulers, lists and tables taken from public documents are not copyrightable.
A copyright life owned in the author’s name is the life of the author plus 70 years. Copyrights made under a work for hire agreement (i.e. employment agreement, listing the copyright as owned by a business or company) have a life of 95 years from publication of the work or 120 years from creation of the work, whichever is shorter.
Copyright protection begins when the work is created. Registration is not needed to identify a work as being copyrighted. Authors can identify their works to be “copyrighted” with the symbol ©, the year of publication and the name of the copyright owner on the work. Registration with the Library of Congress is required in order for the owner to seek federal remedies.
Copyright applications can be submitted to the United States Library of Congress by the author, the owner, or an authorized agent of the owner. An experienced intellectual property attorney can better determine whether a work should be copyrighted. The copyright office will search their records concerning copyright status and ownership for a fee.

Disclaimer

IMPORTANT: Any information provided on this site is very general and is not intended to be, nor should it be construed as, legal advice. Every situation is unique and you are urged to contact an attorney for specific advice regarding your individual situation.

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