About Patents, Trademarks, and Copyrights

What exactly is considered “Intellectual Property?”

“Intellectual Property” is a legal term used generally to include the main bodies of law such as patents, trademarks, and copyrights. Modernly, other areas are often included under the intellectual property umbrella such as trade dress, trade secrets, internet law, and licensing issues. 

What is the difference between a copyright, patent, and trademark?

There are some similarities between intellectual property rights on patents, copyrights, and trademarks, but each requires a different legal process to obtain and serves a different purpose.

Copyrights, patents, and trademarks are not interchangeable; each one covers a different kind of property. For this reason, business owners often hire an attorney to help them obtain a combination of intellectual property rights to ensure they are fully protected.

Copyrights

A copyright protects certain “forms of expression.” Forms of expression include works of art and written materials. In most situations, the creator may have limited automatic protection of some rights without formally registering something created. However, it is difficult to assert rights to unregistered works, and rights to compensation for copyright infringement are limited without formal registration.

What Is a Copyright?

Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. 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 or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

What is an original work?

An original work is anything that comprises copyrightable subject matter under the Copyright laws, including literary works, musical works, choreographic and dramatic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works. There are also copyrights for semiconductor mask works, derivative works and other works defined by the Copyright Statute.

How do I give notice of my copyright?

Proper notice consists of the symbol “©” or the word “Copyright” along with the year of publication and name of the copyright owner. What if someone is infringing my copyright?

What if someone is infringing my copyright?

The penalties for violating a copyright can be severe. The copyright owner is entitled to and may receive actual damages, profits and willful infringement damages. A court may also issue injunctions prohibiting continued infringement, or it may issue a writ of seizure to impound infringing articles. In some cases, the court may even order the infringer to pay attorney’s fees.

If someone is infringing on your copyright, it is important that you contact an attorney. Your rights to procedures and compensation can depend on whether or not you formally registered a copyright. If someone is infringing on your copyright, it is important that you contact an attorney. Your rights to procedures and compensation can depend on whether or not you formally registered a copyright.

Copyright Litigation

Our Attorneys have wide-ranging experience in prosecuting and defending against copyright lawsuits before the United States District Courts and the United States Courts of Appeal. We are meticulous in our analysis of claimed infringement under the Copyright Act and each of our Client’s goals. We work with each Client to develop a clear understanding of the media involved, such as literary, pictoral, graphic, or sculptural works, sound recordings, architectural works, or any combination of these. We carefully evaluate the specific exclusive rights embodied in the media, and whether copying of the expression (as opposed to the idea) has taken place. We also carefully evaluate whether any potential defense, such as the commonly-asserted “fair use” defense, exists to defeat any lawsuit of copyright infringement. We assist our Clients in establishing their copyright lawsuit goals, which may be to successfully defend against a copyright infringement lawsuit and preserve their rights to use certain works, or to pursue a copyright infringement lawsuit against infringers and stop (enjoin) those infringers from infringing the copyright, require the infringers to disgorge their profits attributable to the copyright infringement and pay our Client’s losses, and require the infringers to pay our Client’s Attorney’s fees and costs. We diligently re-evaluate the possible results and risks of any copyright infringement lawsuit, and communicate those possible results and risks to the Client on a regular basis. Moreover, our Attorneys adhere to the Ten Commandments of Litigation which we developed solely for the benefit of our Clients.
We have proven experience in handling cases alleging, among other things, infringement of literary expression, infringement of sound recordings and films, and infringement involving derivative works, compilations, and multi-media.

When you need a litigation copyright Attorney in the Orange County or Los Angeles County area, please call to schedule your free initial consultation.

Do I need an attorney to copyright my material?

Similar to Patents and Trademarks, an attorney is not necessary to file a copyright application. However, due to the complex nature of dealing with the United States Patent and Trademark Office (USPTO) or the Copyright Office, often times, attorneys are retained to ensure the applications are registered properly. 

Typically, copyright protection is automatic once a work has been fixed in a tangible medium of expression, such as paper, magnetic tape, film, a digital medium, or some other material object. However, registration of the work with the Copyright Office is still necessary if you intend to bring a lawsuit in Federal Court to enforce the copyright. In addition, registration provides the copyright owner procedural advantages should an infringement lawsuit ever be filed, including the ability to obtain statutory damages and attorney’s fees.

Why hire us to copyright your material? A few of the benefits of hiring an experienced Attorney to handle your copyright needs include:

  • Copyright Attorneys offer legal expertise and a knowledge of uncommon laws that could affect your copyright.
  • You can trust a Copyright Attorney to maintain confidentiality and represent your best interests.
  • A Copyright Attorney can explain the process in terms you can understand to help you make sound business decisions.

Legal Advantages of Copyrighting Material

Registration of the copyright provides substantial statutory advantages, such as the right to recover statutory damages and attorney’s fees in the event litigation is necessary to enforce the copyright. Indeed, in many cases, such registration is a prerequisite to infringement litigation. As a result, we regularly obtain copyright registrations on behalf of our Clients by protecting their copyrights in their valuable works of authorship such as: computer software, architectural works, paintings, novels, musical works, sound recordings, video, film, television programs, photographs, characters, and product designs.

From obtaining routine copyright registrations to dealing with more complex issues such as ownership rights, works for hire, and derivative works, our copyright attorneys have a firm working knowledge of the U.S. Copyright Act. Indeed, our copyright attorneys have written numerous articles on Copyright law, including covering issues relating to the Digital Millennium Act.

Patents

A patent protects your rights to an invention. Obtaining a patent is a legal process that requires submitting a formal patent application to the United States Patent and Trademark Office (USPTO).

What advice would you give any company considering patent protection?

A patent strategy should be considered carefully for any company. In particular, start-up companies as well as companies developing new products are well advised to consider its product offerings and the real innovations it is bringing to market. A patent attorney or patent firm should be consulted and allowed to perform a due diligence review of the company’s core assets/products to determine if there are potential areas of intellectual property protection. If the core assets of the company are determined protectable, patents are critical and necessary to compete in the marketplace, discourage copying and gain leverage. Patents also have a dramatic effect on the value of the technology by encouraging others to license the technology or face the consequences of patent infringement.

There are numerous Patent Law Attorneys, why choose Ardent Law?

As a business law firm, we understand the need and concern for companies and individuals to manage the ever increasing costs/expenses of running a successful business. The Patent Attorneys at Ardent specialize in drafting patent applications and obtaining patent protection in a cost effective yet timely manner. We pride ourselves on being approachable for we take the time to explain complex patent issues and procedures to our Clients. Our Patent Attorneys, including a former USPTO patent examiner, are experts in negotiating and communicating with the USPTO to ensure that the application receives efficient and proper review throughout the registration process. Whether it is responding to office actions arguing for registration or personally conducting in-person interviews with the patent examiner at the patent office, our patent Attorneys have the experience and expertise to handle all matters.

USPTO Patent Counsel for Foreign Companies

Foreign companies who seek U.S. patent protection retain the services of our Patent Attorneys to initiate and navigate the complex U.S. patent system. Because of our diversity, international relationships and expertise, we have a global reach in prosecuting and procuring patent protection on behalf of our foreign Clients. Our patent Attorneys are fluent in several foreign languages, and represent foreign companies in countries such as China, Taiwan, Korea and Vietnam.

Is it necessary to physically create the invention before filing for a patent?

No. Actual reduction to practice is not required because constructive reduction occurs when a patent application is filed. In some circumstances, actual reduction to practice is preferred because the patent is limited to what is disclosed at the time of filing and it may be difficult to describe a precise solution to a problem without actual implementation. On the other hand, concept patents, without actual implementation, may prove valuable, especially where multiple filings follow in direct relation to technical improvements, innovations and developments.

How long does it take to obtain a patent?

The patenting process varies in length depending on the technical field of the invention and the workload of the United States Patent and Trademark Office (USPTO). In general, it takes 1 to 3 years to receive examination and obtain final deliberation for an application, although in certain technology areas the process can take considerably longer. During the entire patent prosecution process, the invention as contained within the application is considered “patent pending.”

How long is a patent valid?

Twenty (20) years from the date of filing.

What can be patented?

The law defines patentable subject matter as “any new and useful process, machine, manufacture, or composition of matter or any useful improvement thereof.” As definition this relates to technology, patents are granted for a broad array of technology including telecommunications, software, business methods, Internet-based and e-commerce applications, mechanical, medical devices, biotechnology, and others.

How do I choose a Patent Attorney?

A Patent Attorney is like any other professional and should be someone with whom you are comfortable and upon whom you can rely. You should verify that he or she is registered to practice with the Patent and Trademark Office. Also, for some technology areas, it is usually preferred that the patent attorney has an understanding of the general nature of the technology and a background in the technical area through education and work experience. Similar to a patent agent, a patent attorney can prosecute patent applications before the USPTO on behalf of inventors but in addition have specialized legal training. Thus, a patent attorney can provide legal advice in regards to legal issues such as patent infringement and patent validity whereas a patent agent cannot. Often times, a patent agent works underneath and under the supervision of a registered patent attorney.

How much does it cost to obtain a patent?

Costs are directly related to the complexity of the invention, with simple mechanical applications costing less than sophisticated circuit inventions or computer software inventions. The major expense is legal fees that are paid to the patent attorney/firm doing the work. Legal fees vary among attorneys and firms; however, in general, legal fees are related to the complexity of the patent subject matter and the expertise/experience of the attorney.

A recent survey estimated the cost for preparing and filing a U.S. patent application as $6,000 to $12,000 in the United States but can vary from region to region. However, attorneys/firms focused in some very specialized technology areas (e.g. biotech, software and business method patents) charge more than others. It is also standard within the legal industry for many if not all patent attorneys and law firms to charge an hourly rate to perform any additional work after filing of the patent application (e.g. responding to office actions etc.).

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 (USPTO). 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.

Types of Patents

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. In other words, utility patents protect how an invention “works.”;
  2. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. In other words, design patents protect how an invention “looks.”; and
  3. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

What are Invention Submission Companies?

Invention Submission Companies often exists to assist inventors in the marketing, manufacturing and potentially licensing of the invention. Other services include assisting inventors with prototyping of the invention and graphical drawings/movies of the invention.

In contrast to patent attorneys/patent firms, invention submission companies do not specialize in patent prosecution or in other words, drafting patent applications and obtaining patent protection on inventions. Invention submission companies also cannot provide any legal advice in regards to patent validity or patent infringement issues which is in the realm of a patent attorney or law firm.

Unfortunately, invention submission companies have been plagued with numerous complaints of fraud and false misrepresentation in regards to their services. The USPTO allows inventors to report complaints against any invention submission company and keeps public records and a list of such companies. One should carefully interview and get references before working with any invention submission company and is advisable to be represented by a patent attorney who can provide objective counsel to the inventor when dealing with invention submission companies.

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What is considered patent infringement and what are the consequences?

A patent strategy should be considered carefully for any company. In particular, start-up companies as well as companies developing new products are well advised to consider its product offerings and the real innovations it is bringing to market. A patent attorney or patent firm should be consulted and allowed to perform a due diligence review of the company’s core assets/products to determine if there are potential areas of intellectual property protection. If the core assets of the company are determined protectable, patents are critical and necessary to compete in the marketplace, discourage copying and gain leverage. Patents also have a dramatic effect on the value of the technology by encouraging others to license the technology or face the consequences of patent infringement.

Trademarks

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. In other words, trademarks are concerned with preventing confusion in the marketplace between different goods/services whereby protecting the public. A trademark must be registered with the Patent and Trademark Office in the United States.

What is a trademark?

A trademark is any word, name, symbol, or device, or combination thereof, used by a person, company, or organization, to identify and distinguish goods and/or services marketed by the trademark owner. Trademarks include brand names and logos that identify the trademark owner’s products or services from those provided or sold by others, and that indicate the source of the goods or services, even if that source is unknown to the consumer.

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. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO. Under U.S. Trademark Laws, trademark rights are created upon use which is often called “common law” rights. However, registration of the trademark with the USPTO provides additional rights to the owner and thus is highly recommended.

In addition to trademarks, there are also service marks, certification marks, and collective marks. All of these are collectively called “marks”.

What does the symbol "tm" mean?

The “tm” symbol next to certain logos, names or slogans are typically used to inform the public that the owner is using such symbol, name or slogan as a trademark but the trademark is not registered with the USPTO. The use of the “tm” does not in and of itself afford any trademark protection or rights, however, sometimes the “tm” can be helpful evidence to show when an owner first used the trademark in commerce which is important in determining common law trademark rights.

What a Service Mark?

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 commonly used to refer to both trademarks and service marks.

A registered trademark is denoted with a ® and a registered service mark is denoted with a “sm.”

Trademark vs. Service Mark

Trademarks are used to secure rights on a product, while service marks establish rights to a service. According to the United States Patent and Trademark Office (USPTO):
“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 often used to refer to both trademarks and service marks.”The USPTO further distinguishes the difference between a trademarks and service marks as:
A Service Mark is “a word, name, symbol or device that is to indicate the source of the services and to distinguish them from the services of others.”

A Trademark is obtained to “protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.”

Why are trademarks important?

Trademarks prevent confusion in the marketplace of similar goods/services. A trademark immediately informs the consumer that the goods or services are of a certain quality and/or standard. This goodwill gives the consumer a positive feeling about the product and doing business with the organization because he or she knows what to expect before the purchase is made.

How does one secure trademark rights?

Trademark rights arise from actual use of a name, logo or symbol in the marketplace. However, rights important to the protection and enforcement of the trademark can be obtained only through registration. The first step to register a trademark is to clear the mark for use. This process normally entails ensuring that the mark is not already being used by someone else in connection with similar goods and/or services. If the mark is already being used, another mark may have to be selected or features added to the proposed mark to help distinguish it from other uses. If the mark is not being used, one simply registers by applying to the Patent and Trademark Office.

How long does a Trademark last?

In the United States, Trademark rights are perpetual in nature as long as the owner renews the rights of the trademarks by filing certain declarations of continued use at specific time periods and pays the associated USPTO filing fees. One should consult a trademark attorney to carefully calendar these dates in order to avoid abandonment of the registered trademark.

What is a Trade Dress?

A Trade Dress protects the overall distinctive features and appearances of certain products. Trade Dress is governed in general by the same body of law as Trademarks and act to prevent confusion in the marketplace between similarly looking products.

Common trade dress examples include the overall appearance of the exterior or interior of a restaurant or the design of a glass bottle (e.g. coke bottle). Other trade dress found to be protectable includes the overall appearance of certain airplanes and car designs. Trade Dress, as in Trademarks, must act as an identifier of source and be considered distinctive to be protectable and not just mere ornamentation.