BY MELISSA C. PAPA P.A., REGISTERED PATENT ATTORNEY

What is Intellectual Property? 

At its most basic, it is a creation manifested in design, word, method or invention. Some of the ways your Intellectual Property, or your creation, may be protected include the registration of a Trademark, Copyright, Patent or a combination of all three. Generally, people seek to protect their Intellectual Property when they are looking to capitalize monetarily on their creation. This may come in the form of protecting one’s product, one’s business name, or one’s reputation in the market place. The bottom line is that you have created something you do not want others using. Protecting your Intellectual Property, ideally means setting yourself up with the legal right to stop someone else from using or infringing upon your creation. In some cases, waiting too long to take the necessary prophylactic measures, to protect your Intellectual property, may mean you have lost out on that protection.

Where do IP rights come from?

Interestingly, our United States Constitution has provided for protection of Intellectual Property via Copyrights and Patents. All Intellectual Property in the United States may be protected by Common Law and/or Statutory Law. It is important to know how the law relates to each of these avenues of protection. In some instances, the right for protection is restricted by time, and in others there are requirements that must be met to renew that right of protection. How you choose to protect your Intellectual Property may affect the arguments you one day make to a Judge or Board, to enforce your right of protection. It may even determine the damages you are entitled to.

What is Patentable?

A patent gives you the right to prevent others from using, selling, making or importing your invention. The Federal Statute Governing Patents, 35 U.S. Code section 101 tells us, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent…” Anything else is excluded, such as, ideas themselves or things occurring in nature. These are not patentable. For example, if you were walking along and happened to find a new type of daisy in your yard, the daisy itself is not patentable. However, if you take that daisy, alter its state, add other ingredients and make a medicinal concoction that cures an aliment then your concoction may be patentable. The important thing to remember is that your invention must be new or novel and it must be non-obvious in view of all that is already out in the world.

What are the types of Patents? 

There are Utility, Design and Plant Patents. A Utility patent may be obtained for an invention dealing with a process, a machine, a manufacture, a composition of matter, or an improvement. A Utility Patent lasts for a term of only twenty (20) years from the date that you filed for the Patent. A Design Patent may be obtained for a design that ornaments something manufactured. The design may only be atheistic and may not be functional. This type of Patent lasts only fourteen (14) years from the date the patent was issued. A Plant Patent may be obtained for an asexually reproducing plant only. The term for this type of Patent lasts only twenty (20) years from the date the Patent application was filed.

How do I get a Patent? 

Presently, the law is such that it is the first inventor to file for a patent and NOT the first to invent that wins. This means that even if someone invents the same invention after you, they can still be the party to obtain the Patent and benefit from Patent Rights, if they file their Patent Application before you do.

When looking to obtain a patent, you may first choose to file what is called a Provisional Application before filing a Non-Provisional Application. One way to classify a Provisional Application is as a holding place. Filing a Provisional Application gives you one year from the date you file it to then file the Non-Provisional Application. The Provisional Application does not require as much detail and information as the Non-Provisional. This gives the inventor up to one year to potentially sort out any remaining details. Also, it is typically less expensive to have a Patent Attorney file a Provisional Application on your behalf and can thus give the inventor more time to deliberate over whether a Non-Provisional Application is worth the investment. A Provisional Application can also give the inventor “Patent – Pending” status with respect to the invention’s description.

Why the rush? 

Have you ever had the common experience of people “shhhhing” you when you share your latest “big” idea. It seems people generally understand that if they have a good idea, they shouldn’t share it with the public. But why? Not only is it because we have the “first inventor to file” rule but it is also because of the “public disclosure” rule. From the time that you publicly disclose your invention, you have one year to file your Patent Application (provisional or non-provisional) or else you have forfeited your right to Patent protection. Public disclose can include a publication, public use, an offer to sell, or any other activity deemed “available to the public.” It is highly recommended that you have a Patent Attorney draft your Patent and submit your application to the USPTO. However, the USPTO does offer “self-help” information on their website.

In summary, once you’ve determined that your invention may be patentable, do not wait to file your application, as you may be in a race with other inventors to file.

The take way

Trademarks, Copyrights, and Patents are just some of the very important ways you may protect your Intellectual Property. If you are serious about your brand, your business, growth and reputation then find out what your Intellectual Property is and take the steps to protect it today.