Intellectual property is any product of human intelligence or creation, that is unique, novel, and unobvious. It should also have some value in the marketplace such as:
- Literary and Musical Creations
- Unique Names (Brands)
- Business Processes
- Industrial Processes
- Chemical Formulas
- Computer Programs
Intellectual property is protected under Federal Law by applying for a Copyright, Patent, or Trademark, depending on the type of intellectual property being protected.
Applying for a Copyright will protect literary creations, works of art, and other works of authorship that assume a tangible form of expression including books, essays, poems, manuscripts, songs, paintings, photographs, graphic designs, plays, movies, shows and other forms of performance arts.
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TRADEMARKS AND SERVICEMARKS
The purpose of a trademark is to protect words, phrases, symbols, product shapes, and logos used in Federally regulated commerce. The trademark can take almost any form, as long as it is capable of identifying and distinguishing specific goods or services. Generally, to protect a title, business or brand name, slogan, short phrase, or word a Trademark is used because Copyright law does not protect a single phrase, slogan, or trade name.
Service marks, which are used on services rather than goods, are also governed by 'Trademark law.' In the United States, certain common law trademark rights stem merely from the use of a mark. However, to obtain the greatest protection for a mark, it is almost always advisable to register the mark, either with the federal government, if possible, or with a state government. A mark which is registered with federal government should be marked with the ® symbol. Unregistered trademarks should be marked with a "tm", while unregistered service marks should be marked with a "sm".
Section 101 of the U.S. Patent Act lists the following requirements for a utility patent:
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent, subject to the conditions and requirements of this title."
In other words, for an invention to be patentable it must be:
- Statutory - In essence, this simply means that it must qualify for a patent under the law. The statute states that processes, machines, articles of manufacture, and compositions of matter are all patentable, which covers just about everything as long as it's not specifically excluded in the Patent Act. Items deemed non-patentable include data structures, compilations or arrangements of non-functional information, and natural phenomena.
- New - In order for an invention to be patentable, it must be new as defined under patent law. The patent would not be granted if ANY of the following conditions existed:
- The invention was known to the public before it was "invented" by the individual seeking patent protection
- The invention was described in a publication more than one year prior to the filing date
- The invention was used publicly, or offered for sale to the public more than one year prior to the filing date.
Although the United States grants the one year grace period described above, many countries do not grant this grace period. Because of this, it is better to file a patent application before any public disclosures of the invention. A good patent attorneys will always file the patent application prior to any public release or announcement in order to allow international patent filings.
- Useful - This simply means that the item being patented has a useful purpose, which includes actual functionality. Obviously, if a machine does not operate to perform the intended purpose, it would not be considered useful, and would not be granted a patent.
- Non-Obvious - Determining whether a specific change or improvement is "obvious" is one of the most difficult determinations in patent law. To be considered "non-obvious, an invention must not only be novel, but it must not be obvious "to one of ordinary skill in the art." A Patent Examiner will typically review existing patents to find those which are similar to the invention in which a patent is requested. If all the features of the invention can be found in another patent, the examiner will reject the patent as lacking novelty (i.e. it is exactly the same as that which was already known). If no single patent contains all of the features, the examiner will attempt to combine multiple prior patents to find all of the features in a combination of the prior patents. If the examiner finds such a combination, the examiner will typically reject the invention as an obvious combination of items known in the prior art. However, there must be some reason to combine multiple references, and many times a rejection based on such a combination can be overcome. Changes to existing products which would not normally be patentable include the substitution of one material for another, or changes in size.
If you would like to protect your intellectual property from infringement or you feel your patent, trademark or copyright has been infringed upon, you can get quick and easy access to Top Intellectual Property Lawyers in your area offering sound legal help and assistance simply by completing the form at the top of this page.