Legal Information

What is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office.  This right allows the inventor to exclude others from making, using, offering for sale, importing, or selling the invention in the United States.  Once issued, a new patent may last for 20 years from the date on which the application for the patent was filed in the United States.  United States patent grants are effective only within the borders of the United States, United States territories, and United States possessions.

What do the terms “patent pending” and “patent applied for” mean?
They are used by a manufacturer or seller of an article to inform the public that an application is on file in the U.S. Patent and Trademark Office. A fine is imposed on those who use these terms falsely to deceive the public.

Is there any danger that the U.S. Patent and Trademark Office will give others information contained in my application while it is pending?
Patent applications are maintained in the strictest confidence until the patent is issued or the application is published.  After the application has been published, however, a member of the public may request a copy of the application file.  After the patent is issued, the Office file containing the application and all correspondence leading up to issuance of the patent is made available in the Files Information Unit for inspection by anyone and copies of these files may be purchased from the Office .

Who owns a patent if the invention is created by two or more individuals?
If each person had a share in the ideas forming the invention as defined in the claims – even if only as to one claim, they are joint inventors and a patent will be issued to them jointly on the basis of a proper patent application.  If, on the other hand, one of these persons has provided all of the ideas of the invention, and the other has only followed instructions in making it, the person who contributed the ideas is the sole inventor and the patent application and patent shall be in his/her name alone.

Who owns a patent if I have the idea to make an invention and hire a person to build the invention?  Am I an inventor or is my employee?
You are the inventor. An inventor is the person who furnishes the ideas.

Should I trust patent promotion organizations?  Where can I go to see if these organizations are reputable?
Many Better Business Bureaus (located in the city of the organization) have information about the reputation of these organizations.  The Patent and Trademark Office also publishes complaints regarding invention promoters and replies from the invention promoters.

Are there any organizations or state programs that will help me develop and market my invention?
Yes.  Chambers of commerce in your area are helpful in meeting people who might be able to assist you.  Additionally, there are a number of other university-related, small business associations, and charitable organizations willing to assist you. Many states have development agencies which assist manufacturers and inventors in the state.

What is a Copyright?

Copyright is a property right given to creators of original works for literary, dramatic, musical, artistic, and certain other intellectual areas.  The Copyright Act allows the owner of a copyright the exclusive right to reproduce the work, prepare follow-up works (called derivative works) based upon previous works, distribute copies, and display or perform the work.

How do I receive a copyright?  Do I need to mail myself a copy of my work?
Authors or creators of works have copyrights when the work is created in fixed form, or is something that you can touch.  Mailing a work, sometimes called a poorman’s copyright, is not necessary to create the copyright.

If I have a copyright, why do I need a copyright registration?
Even though registration is not a requirement for protection, copyright law provides several benefits to encourage copyright owners to make registration. Among these advantages are the following:

• Registration makes a record of your copyright claim;

• You must have a registration to sue for copyright infringement;

• If you apply for registration before you show your creation to the public or within five years of displaying your creation, a court will presume your copyright is valid and the information listed in your application is correct;

• Registration provides significant advantages in recovering damages for an infringement suit.  If you apply for registration within 3 months after you displaying your creation or prior to an infringement of the work, you may receive statutory damages and attorney’s fees in a court action. Otherwise, only an award of actual damages and profits is available to the copyright owner.

• Registration allows the owner of the copyright to record the registration with the United States customs officials for protection against the importation of infringing copies.

Do I need to have a copyright notice on my artwork?  What should it say?
The copyright notice, which is typically recognized as ©, is no longer required under U.S. law, although use of the copyright notice is beneficial.

Copyright notice tells everyone who views your work that the work is protected by copyright. If someone decides to infringe your copyright, copyright notice limits the infringer’s ability to claim innocent infringement (innocent infringement occurs when the infringer did not realize that the work was protected).

You do not need to request permission to use the copyright notice.

The form for the copyright notice should include:

• The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”;

• The year you first displayed your work; and

• The name of the owner of copyright in the work.

For example: © 2008 Keisling Pieper & Scott PLC

I own a small business making lamps.  My employees sometimes modify the shades or the bases of the lamps.  Do I own these new designs or do my employees?
For business owners, the creation of copyrightable works by employees can be a concern.  Typically, the person making a design or writing a book owns the creative work.  However, the concept of work made for hire provides a minor exception to the general rule of authorship.  If a work is a work made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright.  However, some instances, such as work done by an independent contractor, arise where it may still be necessary for the parties to expressly agree in writing that the work shall be considered a work made for hire. 

If you have employees that contribute designs or other creative works, it is best to consult with an attorney to make sure your rights as an employer are secure.

What is a Trademark?

A trademark is a word, mark, symbol or device used by a person to identify and distinguish the source of that person’s goods and services from the goods and services of another.  For example, a trademark can be a word, a slogan, or a symbol.  Trade dress refers to distinctive product packaging, store décor, product shapes, or the look of a web page. 

How do I receive a trademark?
Trademark rights are acquired based on use of the mark in commerce.  Generally, the first user of a protectable mark in commerce acquires the exclusive right to use the mark for those goods and services in the same geographic market.  Trademark rights do not generally extend to unrelated goods and services or to remote geographic areas. 

Although trademark rights derive from use, there are benefits to obtaining a federal trademark registration through application to the United States Patent and Trademark Office .  Registration of the mark provides the rights to exclusive nationwide ownership of the mark, notice to newcomers of your trademark rights, use of the ® designation, and presumption of ownership of the mark. 

Can I use a phrase I heard on a television advertisement as a mark?
Probably not.  Since trademark rights are based on use, the company that used the phrase in the advertisement may have better rights than you.  In situations like this, it is best to consult with an attorney about your rights.