Kristina M. Grasso, Esq. PLLC

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.

There are three types of patents:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Provisional Patent Applications

A provisional patent application consists of text (referred to as the specification) and drawings that describe how to make and use your invention. It’s a short document written in plain English, with none of the arcane language used in regular patent applications. Informal drawings may be submitted as long as they show how to make and use the invention.

Advantages of Filing a Provisional Patent Application

• You can take up to a year to assess whether your invention will sell before committing to the higher cost of filing and prosecuting (the official term for “pursuing”) a regular application for a patent.

• You can use a “Patent Pending” notice to deter others from copying your invention.

• You establish an official United States patent application filing date for the invention.

• Your application is preserved in confidence.

A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services 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. The terms "trademark" and "mark" are used to refer to both trademarks and service marks whether they are word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services.

Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide.

Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, ®, may only be used when the mark is registered in the PTO. It is improper to use this symbol at any point before the registration issues.

Copyright is a form of protection provided to authors of "original works of authorship," including literary, artistic and dramatic works, musical compositions and other creations.

Copyright protects the author's original expression as contained in the work but does not usually extend to any idea, procedure, process, method, system, discovery, name, slogan, or title.

Copyright protection gives the author the exclusive right to exercise or control the following rights:

• to reproduce copies of the original work;
• to prepare derivative works or "spinoffs" that are based on the original;
• to distribute copies of the work, by sale, transfer, licensing or lending and on the Internet;
• to publicly perform or display the copyrighted work;
• to prevent the intentional modification, distortion or or mutilation of any work of the
  visual arts that would harm the artist's reputation or honor and to prevent the destruction
  of a well-recognized and protected work.