Patents, Pending!

Allen, Dyer, Doppelt, Milbrath and Gilchrist, PA (ADDMG) is one of Florida’s most recognized and respected Intellectual Property law firms, with well over half of the firm registered as patent attorneys. ADDMG has been named as a recipient of a 2017 Trademark Insider Award, in recognition of their placement in the Top 40 Trademark Law Firms list in the United States for 2017. They are also listed in the 2019 Top 100 Trademark Law Firms list in Intellectual Property Today. 

Here, the firm takes a moment to clear up some of the confusion about patents, copyrights and trademarks.

Under United States law, intellectual property primarily comprises patents, copyrights and trademarks. Generally, a patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. The patent excludes others from making, using, selling or offering for sale the patented invention for a limited time period, typically twenty years.

The word patent comes from the Latin “litterare patentes” meaning an open letter. These “open letters” were used by medieval monarchs to confer rights and privileges onto local inventors and artisans and, with a royal seal, the letters served as proof of those rights. While the first system for patenting inventions cannot be attributed to any one country, it is generally acknowledged that the first informal system was developed during the Renaissance in Italy. This system was introduced into the rest of Europe by migrating Venetian glass-blowers to protect their skills against those of local workers.

So what can be patented? In the language of the United States patent statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law.

A few interesting patents include:

July 7th 1790: Samuel Hopkins, for Potash – the first recorded US patent
October 10th 1849: Walter Hunt for the safety pin
July 14th 1868: Alvin J. Fellows for the spring tape measure
2nd February 1906: Willis H. Carrier for air conditioning
13th September 1955: George De Mestral for velcro

Patent protection in a given country does not extend to other countries - inventors must file an application in each territory where they want their patent to be effective. To maintain the validity of a patent, the owner needs to pay fees to each appropriate patent authority and failure to do so causes the patent rights to lapse.

Patents can generally only be enforced through civil lawsuits although some territories (such as France and Austria) have criminal penalties for wanton infringement. Usually, the patent owner will seek monetary compensation for past infringement, and will seek an injunction prohibiting the defendant from engaging in future acts of infringement.

A copyright, on the other hand, is a form of protection provided to authors of “original works of authorship,” including literary, dramatic, musical, artistic, architectural and certain other types of intellectual works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. Copyrights are registered by the Copyright Office of the Library of Congress.

A trademark is any word, name, symbol or device adopted and used by a manufacturer or merchant to identify goods or services, distinguish them from those of others, and indicate their source. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.

These forms of intellectual property enable a company to combat various forms of anticompetitive business practices, working in conjunction with one another. For example, a patent may prevent competitors from adopting a company’s newly developed technology without permission of the patent holder. A copyright prevents others from reproducing an original work or deriving commercial benefit without the original author’s permission. A trademark prevents competitors from adopting branding that is confusingly similar to a company’s, thereby causing the company’s customers to buy from the competitor. 

So how does a company begin the process of protecting its intellectual property? To receive a patent, an applicant (or company) must file an application with the United States Patent and Trademark Office. Upon the trademark office’s decision that the invention is new and non-obvious, it will issue the patent. Copyrights require no such formal application with the United States government and rights take effect upon creation of the work of authorship. Nonetheless, although merely a formality, registration of copyright with the U.S. Copyright Office has certain benefits. Trademarks require a more robust strategy. The company should take steps to ensure that its trademark is uniformly used within the product range and maintain records of such use. When eligible, the company should apply for federal registration and applicable state registrations of the trademark.

In addition, there are some other basic steps a company can take to ensure that its intellectual property is secure. Examples include instituting uniform policies requiring all employees to sign proper agreements. All newly developed technologies should be documented and kept confidential until a registered patent attorney has evaluated potential patent rights. For patented technologies, the company should mark all products with notice of the issued patent. For trademarked logos and brand names, the company should maintain consistent branding with proper trademark notices, (for example, the symbols “TM” and ®) and aggressively pursue potential infringers. And for copyrighted works, the company should regularly register all copyrightable works and properly place notice on such works with the symbol ©, for example. In addition, for registered trademarks and issued patents, the company should monitor all maintenance fees to ensure that they are timely paid to keep all federal rights valid.

Finding your way through the patent and intellectual property maze can seem daunting. It needn’t be. But do remember that without the protection of a patent, trademark or copyright, you might find out too late that you’re walking a tight rope with no net.

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Patent Article, appearing in Forward Florida Magazine

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