Patents stimulate private investment in new, useful and non-obvious technological information (inventions) through the granting of exclusive property rights to the patent holder.

1. What is a patent?

The subject matter of patent is the invention or discovery of any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement of a previously existing process, machine, manufacture or composition of matter. Patents may also protect ornamental features (designs) rather than the function of articles.

Invention is the absolute prerequisite to patentability, and it is defined as the finding out, contriving, or creating, by the action of intellect, of something not existing or not known before.

For an invention to be patentable, the invention must be:

1.New, which means that the person applying for the patent must be the original inventor of the object claimed, and that the invention must not have been known or used by others before the discovery of it; and

2.Useful, which means that the invention must be capable of being beneficially used for the purpose for which it is designed; and

3.Non-obvious, which means that for an invention to be patentable it must, at the time of the invention or discovery, be an improvement over the prior art which would not be obvious to a person of ordinary skill in that art.

2. Who holds the property rights?

The first inventor holds the property rights.

• In the United States, the first person to invent the claimed subject matter may apply for and receive a patent.
• Note: The first person to file an application for a patent may not receive that patent if it can be proven that that person is not the first person to invent the claimed subject matter.

Where more than one person is the inventor, all of the inventors hold the property rights.

Patents may be sold, assigned, willed or otherwise transferred to people other than the inventor or inventors of record. Upon the filing of the appropriate documents of assignment with the Patent and Trademark Office, the assignee obtains all of the rights and limitations granted to the inventor.

3.When do rights vest?

A new, useful and non-obvious invention becomes eligible for patent registration when it is both:

1.Conceived, which occurs at the time the inventor has formulated and disclosed a complete idea for a product, process or composition, and the resulting invention is made sufficiently plain to enable those skilled in the art to understand it; and

2.Reduced to practice, which occurs at the time the invention is perfected, successfully performed, and adapted to actual use.

4.What are the rights/limitations?

The issuance of a patent grants to the inventor (the patent registrant), for a limited term, the right to exclude others from:

• Making, using, offering for sale, or selling the invention throughout the United States, or importing the invention into the United States; and
• If the invention is a process, the right to exclude others from using, offering for sale, or selling throughout the United States, or importing into the United States, products made by that process.

A "utility" patent (defined below) generally provides up to 20 years of exclusive rights from the time the patent application was filed.

A "design" patent (defined below) has a term of 14 years from the time the patent is granted.

Practical Patent Considerations

• "Utility" and "design" patents: There are two basic types of patents: utility and design patents. The utility patent is the most frequently acquired patent, with the word "patent" being regularly used as meaning "utility patent." The utility patent's subject matter includes machines, industrial processes, composition of matter and articles of manufacture. Utility patents might also be appropriate to protect new tools and machines used in creating new materials, methods or techniques for manufacturing new products.
  
  A design patent protects any new, original and non-obvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, not its structure or utilitarian features.
• Complex applications: Design and utility patent applications are complex legal documents which are beyond the ability of most laypersons to prepare. Thus, it is advisable to consult a qualified attorney when considering the subject. Additionally, because of the complex application process, obtaining a patent can be expensive. Design patents are normally less expensive than utility patents and the prices for either design or utility patents depend upon the complexity of the invention.
• Patent searches: The PTO does not require an inventor to search the prior recorded files before filing an application; however, the inventor potentially wastes a lot of money if the invention is not new and novel. The total body of information which may be searched includes published patent applications, books, magazines, technical manuals, etc. At a minimum, most searches try to look at the same resources that will be reviewed by the PTO examiner. A search may cost $1000 and above, depending upon the level of research.
• Patent marking: Patented products are required to be marked with the word "Patented" or the phrase "Reg. U.S. Pat. and TM Off." and the patent's number. Failure to do so may negate a patent registrant's right to recover damages from infringement. If a patent application is being processed, the applicant may mark the product "patent pending" or "patent applied for" although protection does not begin until a patent has been issued. False or improper use of these markings is prohibited and may subject the offender to a penalty.

Further information concerning patents is presented on the Patent and Trademark Office's website by accessing General Information Concerning Patents. While these materials are helpful, it is advisable to secure qualified legal advice when planning to secure a patent.

Words

• Ford's "MUSTANG" for automobiles [U.S. Reg. No. 1467208];
• GM's "IMPALA" for automobiles [U.S. Reg. No. 0661322].

Designs

American Racing Equipment's design for the Torq Thrust wheel [U.S. Reg. No. 2805037]

Chrysler's "Pentastar" design for automobiles [U.S. Reg. No. 0801717]

Words and Designs

Good Year and Winged Foot Design [U.S. Reg. No. 0883095]

Configurations

The shape of the front nose of General Motors' Hummer vehicles including the grill area and adjacent panels  [U.S. Reg. No. 1959544]

Trade Dress

The overall "look" or packaging for a product or a service. The trademark is associated with McDonald's hamburgers, architecture, product packaging, etc. [U.S. Reg. No. 1631967]

Examples of Design Patents

The design patent is heavily dependent upon the drawings to communicate the features sought to be protected (as opposed to utility patents which rely on the written word to describe how the good is new and unique). The focus of the design patent is on the ornamental design of an article, namely, the visual characteristics or aspects of an object. The filing fee for a design patent starts at $390.00, plus legal fees.  Here are a few examples:

Automobile Hood, SLP Performance Parts, Inc. [Design Patent No. D418,465]

Vehicle Wheel Front Face, American Racing Equipment, Inc. [Design Patent No. D367,461]

Cylindrical Pleated Air Filter With Top and Sidewall Filtering Areas, K & N Engineering, Inc. [Design Patent No. D403,414]

 

Kearns: Delayed Windshield Wiper System – Patent No. 4,339,698

Humphreys, Breed, and Thuen:  Air Bag Assembly for Motor Vehicles – Patent No. 5,348,340

By obtaining a copyright, a publisher, author, artist and/or composer gains exclusive rights to their production of original, expressive information (an artistic or literary work) for a limited time.

1. What is a copyright?

The subject matter of copyright includes any original "work of authorship" "fixed in any tangible medium of expression."

• An author is the creator of the original work.
• "Works of authorship" include, but are not limited to literary works, computer software, pictorial, graphic and sculptural works, motion pictures and audiovisual works, and sound recordings.
• "Fixed in any tangible medium of expression" means any concrete expression of an author's own idea in a medium such as a printed document, a recording, software, etc.

The subject matter of copyright does not include any procedure, process, system, method of operation, or concept which is described in such work. (Some of this subject matter may be protected via patents.)

Note: It is very important to understand the difference between an expression, which is protected by copyright, and ideas, which are not protected by copyright. A good way to make the distinction is to think of Einstein and his theory of relativity. Under copyright law, Einstein would not have been able to claim any exclusive rights covering his theory alone. Anyone may use the theory. However, once Einstein wrote a book stating, describing and explaining his theory, his book (the expression of the idea) would be protected by copyright.

2. Who holds the property rights?

The copyright owner holds the property rights. Ownership of a copyright is distinct from ownership of any material object in which the work is embodied, hence transfer of the material object does not automatically convey transfer of the copyright.

• If the work was created by one author, the author is the copyright owner and he/she holds the property rights. He/she may sell or license the property rights to another who will then stand in the place of the author.
• If the work is prepared by an employee within the scope of his or her employment, or if the work is specially commissioned or ordered, then the employer or the commissioner is considered the copyright owner unless the parties have expressly agreed otherwise in a written document which includes the parties' signatures. Recommendation: "work for hire": when you use material created by an artist who is not an employee, make sure to either pay a royalty for the public use of the work or obtain a copyright release. A written document will demonstrate that the work was commissioned rather than simply being purchased from an artist's inventory. In the latter instance, the copyright belongs to the creator unless otherwise agreed.
• If there is more than one author, the work is considered a "joint work" and all of the authors hold equal and indivisible interests in the property rights. The property rights may only be sold to another if all of the authors agree to the transaction, or if the selling author accounts to the others for any profits.

3. When do rights vest and for how long?

The property rights vest at the time the original work is fixed in a tangible medium of expression. Copyright protection is automatic, "when the pen is lifted from the paper." The protection can be reinforced and made known to the general public by registering the copyright with the federal government (Library of Congress) and by affixing the © symbol of the work, along with the owner's name and year of first publication.

A created work is automatically protected for a term spanning the copyright author's life plus an additional 70 years after the author's death. For works made for hire, the duration of the copyright term is 95 years from its publication or 120 years from its creation, whichever expires first.

4. What are the rights/limitations?

The copyright owner holds the exclusive right to do or authorize any of the following:

• To reproduce the copyrighted work in copies;
• To distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by license, rental, lease, or lending;
• To display the copyrighted work publicly (if applicable);
• To perform the copyrighted work publicly (if applicable);
• A copyright owner may prohibit any person from doing, and/or sue for infringement any person who does, any of the above activities without the copyright owner's permission or authorization.

The copyright owner may not prohibit the fair use of the copyrighted work by others. Fair use is a complex legal concept but generally can include copying or displaying the copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

5. Practical tips on copyrights

General: Copyright protection is automatic; however, you can seek the maximum protection of the federal law by registering the mark with the Copyright Office (part of the Library of Congress). In return for a $30 fee, a completed application form and representative copies or other identifiable materials, the Copyright Office will examine a copyright claim and, if the standards are met, issue a certificate of registration. The more frequently used forms are attached to this document.

Copyright notice: Copyright law provides that the public be given reasonable notice of the claim of copyright. The notice appearing on copies should consist of the following three elements: 1) the © symbol or the word "Copyright"; 2) the year of first publication; and 3) the owner's name. Example: © 2004 Jane Doe.

Additional information: Copyright Office forms and information are available on the Internet at: Copyright Basics. All copyright registrations must be filed by mail or delivered to the Library of Congress by courier service. The Copyright Office is expected to have an on-line registration system for public use sometime in 2005.

Examples of Copyrighted Material

A website design is subject to copyright protection. Note the copyright notice at the bottom of the webpage: Copyright 2004 Specialty Equipment Market Association (SEMA)

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A periodical such as SEMA News may be registered with the U.S. Copyright Office.

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