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

A copyright is a form of intellectual property protection whereby an artist has the exclusive right to his or her artistic expressions that have been permanently fixed in a tangible medium. Common copyrighted works include books, plays, films, photographs, music and audio recordings, but also includes recorded performances such as a concert, opera or a sporting event.

A trademark is a word, phrase, symbol or ____ that is associated with a merchant’s goods or services and serves to indicate the source or origin of the goods/services. It is analogous to the cattle brands of the Old Wild West days.

There are several species of patents, but the one that is of most interest is the utility patent. They are used to protect new and useful methods (or processes), machines, articles or compositions of matter. Examples of things protected by utility patents include The Kroll Process for smelting titanium (method), the airplane (machine), the catalytic converter (article), and polyurethane (composition of matter).

Design patents, by contrast, protect the ornamental appearance of industrially useful articles. The design of an automobile taillight is a typical example of an ornamental design that can be protected with a design patent.

One can think of a patent as an agreement entered into between the inventor and the public. In exchange for fully disclosing the invention in such clear and accurate terms s to permit those of ordinary skill in the art to make and use the invention (after expiration), the inventor is rewarded with a finite period of exclusivity to the invention. In the US and many foreign countries that time period is 20 years from the filing date of the application.

How long does it take to get a patent?
About three years, but this can vary greatly depending on how long it takes for the patent application to be examined, and how many rounds of written correspondence between t eh examiner and the attorney is required. In general , it takes a little more than a year for a pending application to be picked up by a patent examiner for examination.

What is involved in getting a patent?
There are three basic tasks: (1) conducting a patent search; (2) preparing and filing a patent application; and (3) arguing (with courtesy and decorum) with patent examiners at the Patent Office in Washington, D.C. (OK, Alexandria, Virginia, to be precise).

I. The Patent Search
Once the invention is rightly understood, it is communicated to a professional patent searcher under a secrecy obligation. The searcher searches for so-called “prior art”, typically in a US patent database, and reports back.. The report typically takes the form of a list of patents that by themselves could anticipate or render obvious the invention, and another list where some combination of references is required to render the invention obvious. I supplement this search with my own of foreign patent databases and non-patent databases. Based on these searches, I prepare a brief report and go over it with you.

II. Preparing and filing the application
If the search reveals no clear or obvious impediments to patentability, then we can proceed with preparing and filing the patent application. This is the most time-consuming and therefore expensive part of the patenting process. This is why the patent search is so important. Although it sometime yields disappointing results in the sense of revealing damaging prior art, it is better than spending the much larger amount of money on preparing and filing a patentr application, only to discover later on that the invention is unpatentable. Not to mention the negative effect on the development of the inventor’s business when his assumption of patentability evaporates.

III. Arguing (politely) with the patent examiner
This process is called “prosecution”. Inventors who are unfamiliar with the patent system/process or who try to patent their inventions themselves are surprised to get a rejection letter (called an “Office Action” in the biz). They are devastated by this development, as they assumed their invention would be patentable. What they don’t realize is that patent examiners get paid to reject patent applications, and furthermore, that the rejection (at least the first one) is not a final decision, but instead is practically an invitation to argue with the examiner about the propriety of his/her rejection.

What does it cost to get a patent?
Quite a lot, to be sure. As you can see from the above, a great deal of work is involved.. The great unknown is how protracted the prosecution phase will be. Still, I feel that I can provide clients and prospective clients with at least a ballpark estimate of patenting costs. Also, my estimate of $7000 is Results may vary, but will often come in lower than that. Nevertheless, I believe that this price is less than what most other firms are charging. The most labor-intensive activity associated with getting a patent is in drafting the application and drawings. It accounts for almost 50% of the total cost! But there is nothing that says that the attorney has to do all the work. The more of the application drafting that the inventor can do for himself or herself, the less that the attorney has to do, and thus the greater the savings for the client.

In view of the high cost, most individuals pursue patents in the context of starting a business, or running and existing business. Patents are a business asset. By giving you the right to exclude others from copying your invention, they give you a 20-year head start on the competition.

What is a provisional patent?
I’ll bet other patent attorneys cringe when they hear this; I know I do (thank you, LegalZoom). There is no such thing as a provisional patent, only a provisional patent application. Provisional patent applications came into existence in June of 1995 as an attempt to provide inventors with “patent pending” status for less money than the cost of filing a regular (now called a “non-provisional” patent application). Although they have virtually the same legal requirements in terms of disclosure as a non-provisional patent application, they can be much less formal. (This is where the savings come in, because it can take a lot of time, and therefore money, to attend to formalities, especially with patent drawings.) They are never examined, and can never issue as a patent. They have a lifetime of one year. Thus, they serve as a “placeholder” patent application. The non-provisional patent application must be filed before the expiration of the year. The idea behind the provisional patent application is that it gives the inventor the all-important “patent pending” status at reduced cost and buys him/her a year of time during which he/she is refining the invention, building the business, looking for investors, looking for licensees, etc.

I have been selling my inventive product for 15 years now. My friends say that I should apply for a patent. Should I?

Sorry, but it is now too late. An inventor needs to file his/her patent application with the US Patent Office within one year of first selling or publicly disclosing the invention. With a few exceptions, most foreign countries are even stricter—they require an inventor to file the patent application even before the invention is put on sale or publicly disclosed. The public policy behind this rule is to issue early, so that the invention is disclosed, and to expire as soon as possible, so the public gets to use the invention, and not just the inventor.

I received a patent for my invention. Why can’t I practice it?

As strange as it may seem, owning a patent does not necessarily give the owner the right to practice his or her own invention. This is because a patent is a negative right. It does not grant the owner the right to do anything so much as it grants him/her the right to exclude others form doing something. Here, the “something” is making, using, selling, importing or warehousing the subject matter of the patent in the country whose patent office issued the patent.

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