Frequently Asked Questions About IP Law
- What is the difference between a patent, copyright and trademark?
While patents, copyrights and trademarks are all forms of intellectual property, they protect different types of IP rights. Because IP law is complex, and it is easy to confuse these terms, a basic overview of these three forms is set forth below.
Patents
A patent is a property right granted to an inventor by the United States Patent and Trademark Office (USPTO). Patents grant the patentee the right to exclude others from “making, using, offering for sale or selling” the invention. Under U.S. patent law, any person who discovers or invents a new and useful industrial or technical process, machine, manufactured article, chemical composition or any useful improvement thereof can obtain a patent. The three most common types of patents issued by the USPTO are utility patents, design patents and plant patents. A patent attorney can help you decide which type of patent is best for your invention.
Copyrights
Copyrights provide protection to authors of “original work of authorship” and are registered by the Copyright Office of the Library of Congress. While there are a wide variety of artistic works that can be protected under U.S. copyright laws, including paintings, novels, poetry works, songs and movies, authors of other items, such as computer software, jewelry, fabrics and architecture, can also obtain copyright protection. It is important to note, however, that copyrights only protect the original “expression” contained in the work rather than the underlying idea or functional elements of the work.
Trademarks
Trademarks generally include words or symbols that identify and convey a business to the public. While some commonly recognized examples of symbol trademarks include the McDonald Golden Arches and the Starbuck’s mermaid, trademarks can also cover larger items, such as an entire jewelry design that identifies the company, which is a concern to all the jewelry by that company. A registered trademark with the USPTO provides several advantages, including giving constructive notice to the public that you own the registered mark. And, if someone else uses your registered mark, you may be able to file suit to recover monetary damages resulting from the infringement.
- What form of protection is the easiest to obtain?
In order of easiest to hardest – copyright, trademark then patent.
- How long do copyright, patent and trademark protections last ?
The duration of copyright protection depends upon a number of different factors, but generally copyrights in works created after January 1, 1978 now last for the life of the author plus 70 years. However, works that are deemed for hire for which the “hiring” entity is deemed the author are protected for a term of 95 years from the date of their first publication or a term of 120 years from the time of their creation, whichever expires first. Patents generally last for 20 years from the date of the filing of the patent application, with the exception of design patents, which have a 14-year duration. U.S. trademark protection initially lasts for six years, after which the registration must be renewed. Unlike copyrights and (in most cases) patents, trademarks can be renewed indefinitely, so long as the trademark owner continues to use the mark to promote its goods or services.
- How long will it take to get protection?
The process for obtaining a patent generally takes between two to four years, whereas copyright registration can take 9 months to one year. While you can pay extra fees to expedite both the patent and copyright processes, it is not generally not worthwhile to do so. Trademark registration typically takes from one year to 15 months. However, rights in copyrights and trademarks exist from the moment of creation or use, respectively, notwithstanding the lack of a Registration. Obtaining a Registration expands the remedies available to the owner.
- Can you sue before a trademark is registered?
Yes.
- Do you need a copyright registration to bring an infringement suit?
While the “simple” answer to this question is yes, there are some complicated exceptions which can be explained by a skilled intellectual property attorney.
- What is a provisional patent application?
A provisional patent application is a document that you can file with the USPTO to establish an earlier effective filing date when you later file your nonprovisional patent application. While the provisional patent application is not legally enforceable, it lasts for about one year and allows you to use the term “patent pending” in connection with your invention. It is not a patent.