FAQ

Patents

Do I need a patent to sell my product?

No.  A patent only gives the inventor the right to keep others from using the invention, not the right to sell the invention.

Can I keep my trade secrets and get a patent?

Generally, no. The inventor must disclose the “best mode” of practicing the invention in the patent application. Disclosure of the best mode is in exchange for the right to exclude others from using an invention. However, even though the best mode needs to be disclosed, it is not possible to invalidate a patent because the best mode was not disclosed. Therefore, some applicants for a patent may withhold the best mode.

Will the government enforce my patent?

No. If someone infringes an issued patent, the remedy is to sue that person in federal court, or ask the International Trade Commission to bar importation of an infringing product.

What is the process to obtain a patent?

The overall process includes the following steps:

  1. Conduct a patentability search (optional).
  2. Prepare and file the application.
  3. Receive a filing receipt from the Patent Office.
  4. The application is typically published 18 months after the filing. It is possible to opt out of publication if no foreign patent applications will be filed.
  5. Receive an office action from the Patent Office.
  6. If the office action raises issues with regard to the patent application, which happens over 90% of the time, respond to the Patent Office. This can occur multiple times.
  7. Hopefully, a patent issues.

How long does it take to get a patent?

It is impossible to precisely predict the length of time to obtain a patent. It depends on many factors, such as the overall backlog in the Patent Office, the backlog in a particular technological area, whether it is an application for a design patent or utility patent, and the level of difficulty involved in persuading the Patent Office to actually grant a patent. Under certain circumstances, such as if an inventor is over 65, it is possible to file a petition to expedite the process. There is also the possibility that a patent may never issue. Sometimes the Patent Office is not willing to issue a meaningful patent, or the invention turns out not to be worth the cost of a patent.

How long does a patent last?

Generally, a utility patent expires 20 years from the effective filing date. The concept of “effective filing date” is complex, so consult with a patent attorney to determine exactly when a patent actually expires. Moreover, the term of a patent may be extended if delay in issuance of the patent was due to the Patent Office’s failure to expeditiously process a patent application.

Design patents last for 14 years.

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Trademarks 

When can ® be used?

The federal registration symbol should only be used on goods or services that are the subject of the federal trademark registration. Filing an application is not sufficient. It is necessary to have federal registration issue. It is permissible to use “SM” for servicemarks and “TM” for trademarks for unregistered marks.

Is it necessary to register a mark to have trademark rights?

Not in the United States. There are rights associated with use so that even an unregistered mark can be used to stop an infringer. However, registration provides significant advantages, as discussed above.

Does a U.S. registration provide rights in foreign countries?

No. Trademark rights in foreign countries require use in that country and, for many countries, a trademark registration.

How long does a trademark last?

As long as the mark is used, forever. If a trademark registration is properly renewed, the registration can last forever.

How long does it take to get a federal trademark registration?

It is difficult to predict exactly how long it will take an application to mature into a registration, because there are so many factors that can affect the process. Generally, an applicant will receive a filing receipt approximately three weeks after filing, which will include the serial number of the application. All future correspondence with the U.S. Patent and Trademark Office must include this serial number. You should receive a response from the Trademark Office within six to seven months from filing the application. However, the total time for an application to be processed may be anywhere from almost a year to several years, depending on the basis for filing, and the legal issues that may arise in the examination of the application.

Is a trademark search necessary?

It is advisable to conduct a search of at least the records of the Trademark Office before filing an application, but it is not legally required.

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Copyrights

Does failure to put a copyright notice on a work result in loss of a copyright?

No, it does not for any recently created work (although it can result in loss of copyright for works published prior to 1976). Failure to include a copyright notice can affect the remedies available against an infringer.

Does failure to register a copyright on a work result in loss of a copyright?

No, but it does affect the remedies available against an infringer.

How is a copyright different from a patent or a trademark?

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

What is a “poor man’s copyright”?

A “poor man’s copyright” refers to the practice of sending a copy of your own work to yourself by registered mail. There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration. The “poor man’s copyright” is an urban myth.

Is a copyright good in other countries?

The United States has copyright relations with most countries throughout the world, and because of these agreements, the United States and these countries honor the copyrights of one another’s citizens. However, the United States does not have such copyright relationships with every country.


If your question was not answered here, please contact us for a free initial consultation at (855) UR-IDEAS.

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