Q: What is a "patent"?
A: It is a right granted by the Federal government to an inventor. A patent gives its owner, for a limited time, the right to exclude others from making, selling, importing, or using the invention that is patented.
Q: How is a patent enforced?
A: A patent owner would normally enforce his rights against an infringer by filing a patent infringement lawsuit in federal court. The owner can usually get an injunction and/or money damages if he is successful in court.
Q: What is a "design patent"?
A: A design patent creates an intellectual property right in the unique, ornamental shape or design of a man-made object. This could include anything from the unique non-functional shape of a piece of furniture to the unique shape of computer screen icons.
Q: What is a "utility patent"?
A: This is what most people think of when they think of a patent. It covers the functional aspects of an invention, as opposed to its unique ornamental shape or design. Examples could include anything from a new mechanical engine to a new drug or computer program.
Q: How does an inventor get a patent?
A: It starts by filing a patent application with the United States Patent and Trademark Office (USPTO). There are detailed rules regarding the format of the patent application that must be followed, therefore it is best to engage the services of a patent attorney to assist with the preparation of the application and to deal with the USPTO during the patent application process.
Q: What is the difference between a utility patent and a copyright?
A: Utility patents and copyrights usually involve two separate types of intellectual property rights. This usually means that things that are entitled to a copyright aren't necessarily entitled to a utility patent, and vice-versa. Copyrights involve the protection of works of expression, such as novels, movies, songs, and artwork. Utility patents involve the protection of new machines, compositions, articles of manufacture, and processes. Sometimes it is possible to get both a utility patent and a copyright for the same product. A computer program can be both copyrighted and patented, but the two types of intellectual property generally protect different aspects of the computer program.
Q: How long does a utility patent last?
A: This can vary depending on a lot of factors, but most utility patents will last for 20 years from the date of filing the patent application.
Q: What is "patent prosecution"?
A: The process of moving a patent application through the PTO is generally known as "patent prosecution". The goal of the applicant is to receive a "notice of allowance" from the PTO, which means that the examiner believes the patent application meets the legal requirements of patentability. Although you have a right to represent yourself, it is usually advisable to hire a patent attorney to assist you with this process.
Q: What is an "office action"?
A: After filing a utility patent application, the applicant will receive correspondence from the U.S. Patent and Trademark Office. This is known as the first "office action". The first office action will usually arrive within half a year to two years of the filing of the application. Sometimes the first office action will inform the applicant that his patent claims have been allowed, but this is a rare occurrence. Usually the examiner at the USPTO will reject some or all of the patent's claims, and give reasons for the rejections. If there are procedural defects in the application, these will also be noted in the office action. The first office action will give the applicant a certain amount of time to file a response to the office action. Most responses by the applicant to claim rejections in an office action will involve either arguments for why the examiner's rejection of particular claims is mistaken, or amendments to the claims that will make them allowable in light of the examiner's initial rejections. After receiving a response to the first office action, the examiner will usually send a second office action. This office action will usually be designated as the "final" office action, and will usually be mailed to the applicant within two to six months of filing the response to the first office action.
Q: What is a "claim"?
A: Patent claims establish the "metes and bounds" of a patent. In other words, a claim describes the scope of a patent right. A useful analogy is to think of patent claims as the fence around the land that you own. The fence tells the world that what is contained within it is your property. Drafting claims in your application that are sufficiently broad enough to protect your invention, yet not so broad that they will be disallowed by the USPTO, can be a difficult endeavor. For this reason, employing the services of a patent attorney is recommended.
Q: What is a "patent examiner"?
A: The examiner is an employee of the United States Patent and Trademark Office. It is his job to review a patent application and determine whether the invention meets the legal standards of patentability. Many examiners are attorneys, so it is in your interest to have a patent attorney representing you who can effectively communicate with the examiner and ensure that your legal rights are protected.
Q: What is a "copyright"?
A: A copyright protects original works of authorship embodied in a tangible medium of expression, such as a book or compact disk. Copyrightable subject matter can include: literary works, music, drama, visual arts, sound recordings, and computer program source code.
Q: How does an author get a copyright for a work created today?
A: A copyright arises automatically when an author creates a work that meets the statutory definition of copyrightable subject matter. However, without registration of that copyright, the author will be unable to take advantage of certain rights and benefits that U.S. Federal law conveys on the registrant of a copyright.
Q: What are some of the benefits of timely copyright registration?
A: Some of the benefits of timely registration include:
A Possible Statutory Damages Award In an Infringement Suit,
A Possible Right to Attorney Fees In an Infringement Suit, and
Greater Public Notice of the Copyright and It's Owner.
Q: How long does a copyright last?
A: In some circumstances, a copyright lasts for the life of the author, plus a period of time after his death. However, the duration of a copyright depends on several factors, and you should consult with an attorney to determine the duration of any particular copyright in your particular circumstances.
Q: Is computer program source code copyrightable?
A: Yes. However, a copyright only protects the "expression" underlying a computer program, not the "idea", or functionality, of that program. An author wishing to protect the functional aspects of a computer program should look to other forms of intellectual property protection available under U.S. law.
Q: Where can I get more information on the Internet about Copyright Law?
A: There are several web sites available for learning more about copyright law including:
Q: What is a trademark or service mark?
A: A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods 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.
Q: Do Trademarks, Copyrights and Patents protect the same things?
A: No. Trademarks, copyrights and patents all differ.
Q: Is registration of my mark required?
A: No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages.
Q: What are some of the advantages of federal trademark registration on the Principal Register?
A: Some of the advantages are:
Constructive notice to the public of the registrant's claim of ownership of the mark
A legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration.
The ability to bring an action concerning the mark in federal court.
The use of the U.S registration as a basis to obtain registration in foreign countries.
The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
Q: When can I use the trademark symbols TM, SM and ®?
A: Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the United States Patent and Trademark Office. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
Q: What does trade secrets law protect?
A: Trade secrets law protects secret business information against unauthorized use or disclosure by one who obtained it through improper means or through a confidential relationship.
Q: What is the legal basis of trade secrets law?
A: Unlike patent and copyright laws, in which federal statutes play a significant role, trade secrets law remains primarily a matter of state law. Each state is free to develop its own rules, as long as they do not conflict with federal intellectual property law policy.
Q: Do I have to register a trade secret?
A: No.
Frequently Asked Questions: Copyright Infringement On The Internet
Q: What is peer-to-peer file sharing?
A: A peer-to-peer network ("P2P Network") involves computers that are connected so that they can share information with
each other. Unlike a client-server network, where there is a computer that acts as a central server, each computer in
a P2P network is capable of acting as both a client and a server. Any computer on the P2P network has the potential to
access files stored on any other computer on the network. In the 1990's some programmers realized that the Internet could be
used to allow people with home computers to share music files by using software on their home computers that would
essentially connect their computer, via the Internet, with any other computer that also had the software, thereby creating
a world-wide peer-to-peer network.
Q: What is wrong with sharing music over a peer-to-peer network?
A: In essence, a copy is being made of the music, which is then distributed to others on the P2P network. If the music
is copyrighted, and if you don't have permission from the copyright holder to do this, then it is copyright infringement.
This does not mean that all music obtained over the Internet is illegal. There are now legitimate music download sites,
where a properly licensed copy of music can be obtained for a fee. Furthermore, some musicians willingly allow their
music to be copied and distributed on P2P networks for various reasons. For instance, a new artist may allow his songs to
be copied and distributed on P2P networks as a form of advertising, i.e., because the artist wants to increase public
awareness of, and interest in, his art.
Q: I've been sued by a music company for copyright infringement, but I've never used a P2P Network. Why do they
think I'm infringing their rights?
A: This probably has to do with the way the music companies are trying to find online copyright infringers. The music
companies are generally looking at who pays for the Internet service. For instance, if you have
a computer and pay for Internet access at that computer, then you will most likely be the one sued if someone uses
your computer and Internet service to violate copyright law. In practice, this usually means that parents are sued for
the actions of their minor children.
Q: How can the music companies hold me responsible for the actions of my children or other people?
A: Whether the music companies can hold you liable depends on the facts and circumstances in your particular case.
If you are sued, you should consult with an attorney to help you decide what your chances of winning such a lawsuit are.
In certain circumstances, a person can be held liable for the copyright infringement of other people. For instance,
the doctrine of "contributory infringement" stems from the legal principle that one who directly contributes to another's
wrongful act should be held accountable. In one case, a defendant store sold blank tapes and loaned shoppers music tapes
that contained copyrighted material. The customers could then use recording devices, found on the store's premises, to
duplicate the music tapes. Although the store was not directly infringing copyright, they were knowingly providing their
customers with the means to engage in copyright infringement. In other circumstances, the courts have found that a person
did not have sufficient knowledge and control over the infringing activities of others to be held liable. For instance, in
the 1980's, the Sony Corporation was found not liable for contributory infringement. The copyright owners in that case
claimed that by selling VCR's to the general public, Sony was contributing to the copyright infringement of customers that
used their VCR to illegally copy intellectual property. The United State Supreme Court said that Sony's VCR product had
so many uses that would not infringe copyright, that it would be unfair to hold Sony responsible for the actions
of a few of its customers.
Q: I've been sued, and the music companies are claiming that I owe them thousands of dollars. Why are they asking for
so much?
A: The law allows a copyright owner to be awarded "statutory damages" if they win a lawsuit, even when the actual damages
for the copyright infringement may be minimal or even non-existent. For instance, as of 2006, Section 504(c)(1) of the
Copyright Act authorizes an award of statutory damages "...in a sum not less than $750 or more than $30,000, as the court
considers just." If the copyright owner can prove that the copyright infringement was committed "willfully", then a
court has discretion to increase the statutory damages award up to $150,000. However, if a court finds that an infringer
was not aware or had no reason to know that his acts constituted an infringement of copyright, then the court may reduce
the statutory damage award to $200 (or more). In addition to damages, a prevailing party in a copyright
infringement lawsuit may be awarded their costs and attorney's fees, at the court's discretion.
Q: Can I win my attorney fees and costs if I fight a copyright infringement lawsuit and win?
A: The Copyright Act allows a court to award your attorney's fees and costs if you win the lawsuit. However, this is
at the court's discretion, and there is no guarantee that the judge, in your particular case, would do this.
Q: If the music companies have made an offer of settlement, can I negotiate with them on the settlement sum?
A: You can try, but in this author's experience, the music companies make a demand for a set amount to settle the lawsuit
against you, and the settlement amount is non-negotiable. You will usually have only two choices: (1) Fight the lawsuit at
trial, or (2) Pay the amount demanded by the record companies in order to settle the matter. In this author's opinion,
while the record companies certainly have a right to have their intellectual property protected, some provisions in the
current copyright law, such as excessive statutory damage amounts, need to be reformed to reflect the fact that most
people being sued by the record companies are not infringing for profit, the actual damages may be minimal, and the
infringer may be a minor child who is not old enough to be aware of the fact that he or she may be infringing copyrights in
the first place.
