Inventions & Patents

What is a Patent?

A patent is a temporary (20 year) right granted by the United States to an inventor, to exclude others from making, using, or selling (and by case law, importing) an invention. A patent is good only in the United States unless certain steps are taken prior to the disclosure of the invention. A patent right is sometimes referred to as a legal monopoly right, since it confers a right to keep others from the invention, rather than as a “positive” right to make, use or sell an invention. There are currently about two million United States patents issued to inventors that are still active, and almost half a million pending patents. Confusion is often created because there are two types of patents issued by the United States Patent & Trademark Office (USPTO): utility patents and design patents. They protect different types of intellectual property, and provide very different rights.

What’s Patentable?

Utility Patent

A utility patent may be granted to protect a new, useful and non-obvious structure, process (including computer programs), function, or business method. Improvements to any of these types of inventions that are also non-obvious are valid subject matter for patent applications. The term of a utility patent is 20 years from the date of filing the utility application. Time Budget for a Utility Patent: It takes about a week to prepare a utility patent application, once the job is begun, and it takes about a year to hear back from the patent office once one is filed. The total time between filing and issue can be as short as a year, typically lasting two years, and may last much longer.

Design Patent

A design patent protects an ornamental design embodied on an article of manufacture, or the ornamental nature of the article itself. It is granted for any new, original and ornamental feature. The term of a design patent is 14 years from the date of issuance. It typically takes about a day to prepare and file a design with the USPTO, and six months to receive a response from the patent office once a design patent is filed. Time Budget for a Design Patent: It takes about a year to complete the design patent process, though longer terms may be needed for some designs.

Funding and Licensing

What is a License?

A license is a written agreement that grants rights, usually in intellectual property. So, patents (including design patents), trademarks, copyrights, and trade secrets may be licensed. Sometimes, the license is a stand-alone agreement, while at other times a license is incorporated in another agreement, such as a franchise agreement or merger, for example. One of the great things about a license is that it can define and divide rights almost any way you can imagine–in time, by geography, by market segment, by the type of product incorporating the license, and in a host of other ways.

The Limits of Licenses

However, licenses, because of their complexity, can be the playground of the wicked. Unscrupulous persons can use the complex language and interpretation rules of a license to cheat the naive of rights and/or money. For example, in many states licenses come with an “implied warranty of fitness” — a fancy way of stating that the thing your licensing will work (imagine that!). However, many licenses, particularly in the software industry, specifically exclude this warranty. Not only do we know these tricks, we also know standard license rates and have designed license programs and licenses for major Universities, small businesses, corporations, and individual inventors.

Brands and Trademarks

What is a Trademark?

A trademark or service mark can be a word, phrase, logo, design or combination of these that identifies the source of origin of goods or services. A trademark exists in each state at common law, in most states through state registrations, and federally through USPTO registration. Registering your business as a corporation or other entity with a secretary of state confers NO federal or state rights to a trademark.

Trademark Notices

Anyone who claims rights in a mark should use the symbols TM (trademark for goods) or SM (service mark for services) to alert the public to their claim to an unregistered mark. You do not need to have a trademark application filed or a registered trademark to use these symbols. The registration symbol (R) may only be used when the mark is actually federally registered with the USPTO.

Biz Formation & Incorporation

What is Open Source?

Open Source software dominates the libraries of many developers and coders, and may even be incorporated in proprietary development packages, such as .NET. But, what is open source, and why is it important to manage the use of open source software? By definition, open source software is software code that meets certain definitions articulated by a standards society, The Open Source Initiative. While the Open Source Definition flows from the older Free Software Initiative, neither open source software nor “freeware” is without cost. Indeed, the cost could be very high.

Types of Open Source

The most commonly used open source programs are governed by licenses called “business friendly,” loosely meaning that the use of the code merely requires some degree of attribution, and programs incorporating the open source code may be licensed commercially for money. However, some open source programs/modules/etc are governed by “business aggressive” licenses. These may forbid the code from being used commercially (with various penalties for violations), require that programs (meaning your program) incorporating their code also be likewise open source, or even that if your code incorporates the open source code, the creator of that original open source code obtains the rights to your code. The lesson: read the license, and ask an attorney what using that code means to you.