Fortune 500 Company, New Jersey.
The following is a general overview of intellectual property. For more information, please review the helpful links on our Legal Resources page.
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What is intellectual property?
Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
Intellectual property is divided into two categories: (i) Industrial property, which includes inventions (patents), trademarks, industrial/ornamental designs, and geographic indications of source; and (ii) Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
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What is a U.S. patent?
A patent is a property right granted by the Government of the United States of America to an inventor, "to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States," for a limited time in exchange for public disclosure of the invention when the patent is granted.
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Who can apply for a patent?
A patent may be applied for only in the name(s) of the actual inventor(s).
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What can and cannot be patented?
Patents include utility, design and plant patents.
What can be patented utility patents are provided for a new, non-obvious and useful:
- Process
- Machine
- Article of manufacture
- Composition of matter
- Improvement of any of the above
Examples: fiber optics, computer hardware, medications.
A design patent is provided for an ornamental design of an article of manufacture. Design patents guard the unauthorized use of new, original, and ornamental designs for articles of manufacture. The look of an athletic shoe, a bicycle helmet, the Star Wars® characters are all protected by design patents.
A plant patent is provided for asexually reproduced plant varieties. Hybrid tea roses, Silver Queen ™ corn, Better Boy ™ tomatoes are all types of plant patents.
What cannot be patented:
- Laws of nature
- Physical phenomena
- Abstract ideas
- Literary, dramatic, musical, and artistic works (subject of Copyright)
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Inventions which are:
- Not useful (such as perpetual motion machines); or
- Offensive to public morality
Invention must also be:
- Novel
- Non-obvious
- Adequately described or enabled (for one of ordinary skill in the art to make and use the invention)
- Claimed by the inventor in clear and definite terms
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How long does patent protection last?
For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which begins with the date of the grant and usually ends 20 years from the date you first applied for the patent subject to the payment of what are known as maintenance fees. Design patents last 14 years from the date you are granted the patent. No maintenance fees are required for design patents.
Note: Patents in force on June 8, 1995 and patents issued thereafter on applications filed prior to June 8, 1995 automatically have a term that is the greater of the twenty year term discussed above or seventeen years from the date the patent issued.
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How much does it cost to get a patent?
Fees vary depending on the type of patent application you submit. Fees may also vary according to the way you "claim" your invention.
There are three basic fees for utility patents:
- The filing fee, which is non-refundable whether or not a patent is granted. (This is the cost to have your invention "examined" by the US Patent and Trademark Office - remember, you may or may not get a patent!)
- The issue fee (you pay this only if your application is allowed)
- Maintenance fees (paid at 3 1/2, 7 1/2, and 11 1/2 years after your patent is granted - these fees "maintain" your legal protection).
- Additional fees may be required.
Typical fees are as follows (these are only intended to give you a "ballpark" estimate) these fees do not reflect all the possible variations in the preparation (attorneys fees) filing and patenting your invention - also, these fees are subject to change. The PTO has a current schedule of fees that is updated annually. See our Legal Resources page for more information.
Filing a provisional application. $105 Filing a non-provisional application. Approximately $515 Issue fee Approximately $650 Maintenance fees:
Due at 3 1/2 years
Due at 7 1/2 years
Due at 11 1/2 years.
Approximately $465
Approximately $1,180
Approximately $1,955 -
What is a PCT application?
The Patent Cooperation Treaty (PCT) is an international agreement for filing patent applications having effect in many countries around the world. Although the PCT system does not provide for the grant of "an international patent", the system simplifies the process of filing patent applications, delays the expenses associated with applying for patent protection in foreign countries, and allows the inventor more time to assess the commercial viability of his/her invention. Under the PCT, an inventor can file a single international patent application in one language with one patent office in order to simultaneously seek protection for an invention in the PCT member countries. See our Legal Resources page for more information.
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What is a trademark or service mark?
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet, the terms "trademark" and "mark" refer to both trademarks and service marks.
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Is registration of my mark required?
No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.,
- constructive notice to the public of the registrant's claim of ownership of the mark;
- a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
- the ability to bring an action concerning the mark in federal court; the use of the U.S registration as a basis to obtain registration in foreign countries; and
- the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
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When can I use the trademark symbols ™, SM and ®?
Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
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What is a copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
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What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
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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.
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When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
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Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.
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Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.
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Is my copyright good in other countries?
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other's citizens' copyrights. However, the United States does not have such copyright relationships with every country.
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What is a trade secret?
Trade secrets are information that companies keep secret to give them an advantage over their competitors. The formula for Coca-Cola® is the most famous trade secret.