What are the types of Patents?

The most common type of patent is Utility Patent. Inventions that produce a utilitarian result by functioning in a distinctive way are covered under this patent. Any new, useful and unique, improvement on any existing machine, process, manufacture etc. is considered suitable to file for a Utility Patent.

Velcro fasteners, new drugs, electronic circuits, software, semiconductor manufacturing processes are Utility Patents. Even new bacteria, new animals, plants, automatic transmissions, and virtually all possible things that can be produced by a human are examples of Utility inventions.

A Utility Patent has a term period of 20 years. Once the patent is issued, one can get the rights to a term of 20 years from the date of filing the first application for the Invention.

Design Patents: Any unique, ornamental, or visible shape or design of a useful object comes under design patents. Any thing which has a unique appearance can be patented. It can be a building, a computer case, computer screen icons, or a desk with exceptional shape.

It can also be the stylish look of a pen holder, but the way the pens are kept in the holder is functional and a design patent cannot protect the feature of function.

It is necessary that the uniqueness of design must be visual and ornamental. When the the shape is functional and aesthetic, A utility patent is only absolute and proper to be filed for the invention.

There is a constructive way to differentiate between utility invention and a design. It is to ask, ” Whether the function of the device will be materially affected, if the novel features are removed?”

If the answer is yes then, a Utility Patent is applicable for the invention. As an example, a a couch has a nice design, that is made to make it look better, but has no practical use in the invention, then a design patent would be appropriate.

For example, a bed has a particular design that makes it pleasing for the eye and helps the function of the bed so much that, it will not be possible to separate the design and the function of the bed, then a Utility application is applicable.

Like wise, a baseball bat and a fishing rod may have a stylish design, but if it proves useful in the purpose it serves to catch fish or hit a home run respectively, then a Utility application is suitable.

Thus if the Design, is first and foremost functional, then it cannot be patented as a “Design Patent”, but can be protected by a Utility Patent.

The term of a Design Patent is 14 years from the time it is granted.

Plant Patents: Patents are issued for new and unique varieties of Plants. A Patent is granted to Plants that can reproduce asexually. By the means of the techniques of grafting and cutting, one can reproduce the plant asexually.

Those plants that reproduce by pollination are called sexually reproducible plants and can be granted a patent under the Plant Variety Protection Act.

Under special circumstances a Utility Patent can also be issued to a sexually or asexually reproducing Plant.

What does a Patent mean?

Patent is the right granted to an Inventor to prohibit others from making, selling, importing, or offering an invention for sale, by the Federal Government, for a fixed period of time. In other words, a patent is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time. For example, Whitcomb Judson received a patent for 17 years, for the zipper which was granted in 1893. During this period, he was solely entitled to manufacture and sell this invention.

The term “Invention” can be interpreted in a broader sense. Any new thing such as article, machine, composition, process, or new use, developed by a person can be covered within the ambits of ‘Invention’. For example, in 1988, on behalf of Harvard University, the first patent was issued to Drs. Leder and Stewart, for a new animal life form personified in a genetically altered mouse. This new form of life is an invention.

The patent rights can be secured for 17 to 18 years after paying certain fees. Once this period expires, the invention can be copied by anyone.

Any form of personal property can be regarded as a patent. It can be sold out like any other thing upon payment in lump sum. It can also be licensed to anyone to utilize the invention upon some royalty payments. However, under the State’s intestate succession laws, transfer of patents can be made by way of gift, will, or descent.

What is the difference between a Copyright and a Design Patent?

The aesthetic component is a part of both forms of protection, under Copyright as well as Patents.  A Design Patent gives the owner a right that protects industrial designs, where the shape of the invention has ornamental features and the design or artwork cannot be separated from the invention, or does not have any meaning by itself. Like for example, a tire thread design and a computer case are design patents but a surface decal is not as it can be used elsewhere.

A Copyright is used for any artistic or written work which is either inseparable from any object or not separate from the object of invention. As long as the design feature is purely ornamental not functional. Thus Copyright can cover surface ornamentation such as artwork on a can of salami, or tuna, or sculptures such as statues, or the shape of a toy even! Where the shape of a toy is not part of the function of the toy and a toy is considered not useful (though most parents would disagree!!)

What is the difference between a Copyright and a Utility Patent?

The subject matter of a Patent cannot be protected under a Copyright, nor, can the work protected under a Copyright be protected under a Patent.

A Patent is an exclusive offensive right to protect machines, articles of manufacture, processes and any new use of a certain thing unthought of before.

A Copyright is an exclusive protection for works of art, literary works such as plays, books, journals, music recordings provided they are not of any functional use.

Having said that, a few works may be granted both the protection of a Patent and protection of a Copyright such as “Computer Programs”. In a way, Computer Programs are a series of numbers related to each other. This relationship and sequence is termed as routines. These cannot qulaify as a Patent, but can be covered under the Copyright Laws as they are a creative expression of an idea.

Another perspective, Computer Programs are instructions fed to the machine (computer) in a certain way, to make it perform a certain way. Patents have been issued on Computer Programs when the program affects some hardware method of working or changes a commercially useful function.

The author must choose whether to rely on Copyright or a Patent for the Computer Program. While choosing thus, the author must understand broader offensive weapons granted under a Patent, while also debating the expense and time in obtaining one.

Else the ease with which a Copyright is obtained must be understood and weighed against the narrowness of its protection offered.

In many applications, both rights can be used together for different parts of the invention or work. Example, in a board game, the game design or artwork can be covered by Copyright, as well as the instructions accompanying it.

The name of the game can be used as a Trademark, while the apparatus of the game can be Patented if it is sufficiently unique.

How is a Right created in a Copyright? How is a Copyright Registered?

A Copyright starts from the time the work or expression of an idea is recorded in some known form, or has been created physically. Example, a play has been written, a song recorded, music composed, movie directed etc.

The term of a Copyright exists for the lifetime of its creator or author and an additional 70 years. For works that are created for hire, the term is for 95 years from the date of publication or 120 years from the date of creation, whichever time period is the shorter one of the two.

What is a work created for hire? A work that is made for hire is made by an employee in the course of employment. So those of you who have made any genuine, original content in the course of employment, not to worry! It has been covered by a copyright, should you choose to protect it. The owner of the Copyright, in a work for hire contract, is the Employer or the Hiring Party.

A work made for hire can also be by an independent contractor, freelancer, or consultant, who is under a WRITTEN, work made for hire contract. For Copyright protection to be accorded, it is not necessary to have the Copyright registered. If the Copyright is registered, then it may entitle the owner to attorney fees, costs, and damages that do not have to proved in a court of law, which is otherwise known as “Statutory Damages.”

For works published after March 1, 1989, it is not necessary to to place the known copyright notice, like, Copyright © 2008 JK Rowling on each published copy of the work. It may not be necessary but it still is a good idea to do so, as it shows everyone that there is a copyright being claimed on the work, who is the owner of the copyright and when the work was first published. If this means is adopted it a cautionary protection against infringement and also a protection of the defense that the infringement was accidental.

What is a Copyright?

Without the author’s permission no one can print, distribute, copy in part or whole any dramatic, software, literary and other works of art. A legal right given to authors of such works of art, music, literature, is called a copyright.

Only an author’s expression of a particular idea is protected under the Copyright law and not the idea itself. A copyright can provide a right to its owner to take action against any person, entity which copies, or tries to copy the work of art.

A copyright is only a right to protect the copying of a specific arrangement of words that are part of a book or play. It does NOT protect the subject of the book or play, or the message it carries or any teaching of the book.

If one wishes to publish any idea or concept, one is free to do so, so long as one uses their own words. If there is any particular wording copied, then there is a violation of copyright with regard to that work of authorship (book).

In order to obtain a Copyright, the work published or created must be “original”-the author’s own efforts, and not the result of copied or expanded on the efforts of someone else.

A telephone directory cannot prevent another company from copying the directory as it has no “original” content.  Copyright does not cover items such as the title, a phrase, a method, the way a word is lettered, an idea or a plan, a form or a system. A concept or a principle or even a device CANNOT seek protection under the Copyright Law.

A U.S government publication is not covered by Copyright and this is by law. Anyone can freely copy such publication and sell it, if needed or desired.  A Copyright is not used for a utility article, unless it has a design feature that can be easily separated from. The design feature in the article must also exist independently from the article. This requirement is known as the “Separability requirement”. Example, a belt buckle cannot be copyrighted but the design of the belt buckle can be protected under Copyright laws.

Copyrights- An Introduction

Copyright law covers a vast area in our daily lives. In this section we will discuss the area covered by Copyright law and the difference between Patent law and Copyright law. This section will also describe how one goes about obtaining and retaining a copyright.

Specific types of works are covered by copyright. These include books, poetry, movies, music compositions, songs, photographs, computer programs, labels, maps, drawings, advertisements, sculpture, and architecture.

Copyright protection is automatically awarded to an original work which is given a physical form. One need not register a Copyright, although it is helpful to give an individual more rights, for example the right to bring a suit in a federal court with regard to infringement of Copyright, and the right to seek for statutory damages and even the right to seek for attorney’s fees in exceptional circumstances.

Registration of Copyrights is done under categories. These categories are based on the type of work that comes under Copyright protection.

What is a Trademark and a Trade Name?

A trade name is used by a company to do business. It is a certain word or group of words. A company uses a trademark to sell its services or products.

A trademark is a word or symbol which a company uses to create recognition in the consumers minds. An example of a trade name would be the firm name of Procter & Gamble (P&G). On the other hand,  Johnson’s shampoo is a trademark. The mark of Johnson’s Shampoo is a brand and hence a trademark, not a tradename.

However,  sometimes companies use the same words for a trademark and a trade name, thus making it difficult to tell whether the mark is a trade mark or a trade name.

How is a Trademark related to a Patent?

What connection does Trademark law have to Patent law? Let us consider the following inventions, the Hula Hoop or the iPhone … or for that matter, any other invention, patentable or not.

In the case of the Hula Hoop, the invention was unpatentable, but the name of the product was protected under Trademark laws. Although, in the case of the iPhone, the invention is patentable and the trademark protected under Trademark laws.

So, it can be understood that, a trademark gives a product brand recognition in the market. Whereas, a patent gives one a monopoly of the market for a certain time, based on the product’s functional features.

As long as the trademark is in use in the market, it is in force and can be used forever, making it an useful tool to increase monopoly in the market. For example, the Scotch guard process of protecting a carpet was invented by Patsy Sherman and Samuel Smith in 1973. This process was then patented.

However, so many years later, the trademark of “Scotch guard” is still known for carpet protection. Though other companies may copy the process, the trademark is still known and gives the company using it for better leverage over consumers.

For More Information on federal trademarks, access the U.S Trademark at www.uspto.gov.

Trademarks- For You and For Me…

The most commonly seen and found branch of Intellectual Property Law is Trademarks. We see them everywhere, use them on a daily basis, and make all our buying decisions based on them. For instance, the car you drive, the kitchen blender you use, the cereal you eat, the books you read are all bought by you based on your recognition of trademarks. Even the computer you use or the watch you wear is all based on how familiar certain trademarks seem to you. Marketing gurus refer to this as “brand recognition,”or  in other words, a trademark.

Some trademarks, like Kodak, Nike, the Tarzan yell and the McDonald’s arches, are instantly recognizable. That is the value of a good trademark. Essentially, it means any word or symbol that is associated with the product or service that marks it apart from others in the marketplace. A trademark is any word, logo, sound, shape, color or color combination or even a smell, that identifies it in the mind of the consumer.

As you look through a magazine or at a billboard you see the Nike swoosh in an advertisement and instantly set it apart from the Adidas slogan “Impossible is nothing.” Likewise, the flavor and smell of a Starbucks Latte is a trademark as well, because you are able to distinguish between a Starbucks drink and a coffee drink made from another coffee maker.

Trademarks can also be called service marks. In the USA, “SM” notably stands for a trademark, which is used to identify a “Service offered”. Service Marks are used in connection with services offered such as AT&T where, a tone sound followed by a woman speaking the company’s name is used, to identify its long distance service. Also, MGM has used the sound of a Lion’s roar for its motion pictures, which is considered as a Service Mark.

There are various types of trademarks:-

· A Trademark ™

· A Service Mark ℠

· Collective Marks— are marks or service marks used by members of societies or cooperatives or any other groups or organizations or associations, unions and others. These are used to distinguish between the member and non- member of a group or association.

· Certification Mark— is a mark which is used to endorse the characteristics or endorse a particular characteristic of a good or service such as region, origin or quality of the goods or services. If the services were performed by members of an organization or association or union, the Certification mark will testify to they’re having performed such services.

· Trade Name— is a name or mark adopted by a business to distinguish between the company or business and the goods or services it provides.

· Trade Dress— The total appearance of a good or service is protected under the § 43 (a) of the Lanham Act. A Trade Dress is the whole image of the product or goods or services and can be protected if it is unique and not contributing to the product’s function in any way.