Prosecution

A patent is a property right issued to an inventor by a federal government, whether in the United States or a foreign county, that allows the patent owner to exclude others from making, using, selling, or offering for sale the invention in the issuing country or from importing the invention into the issuing country. Oftentimes, a client will file a patent application in the United States, and then within the next 12 months, the client files a patent application called a “PCT patent application” as a means to ultimately seek patent(s) in one of more than one hundred other countries in the world.

In the United States, the United States Patent and Trademark Office (“USPTO”) permits the filing of provisional or non-provisional patent applications, wherein the latter may issue into a utility, design, or plant patent for a new, non-obvious, and useful invention. Utility patents are for inventions involving a process, machine, manufactured article, chemical composition, or improvement of one these four classes. Plant patents are for certain types of plants, and design patents are for ornamentality, i.e., non-functional aspects, applied to an article of manufacture. For new applications, the term of a utility and plant patent is 20 years from the filing date of the application, and the term of a design patent is 15 years from the filing date of the application.

A trademark is a word, phrase, graphic design, sound, color, smell, or symbol that enables a customer to recognize that a product and/or service bearing the trademark originates from a particular source. We encourage our clients to file application(s) that protect the goodwill that they have invested or intend to invest in their marks so that competitors cannot unfairly compete. Upon successful prosecution of a filed trademark application, a registration will issue that provides the client with a full array of nationwide rights that the client would not have without the registration for the mark. Furthermore, the registration entitles the client to use ® next to the mark as a means to tell the public to tread carefully because the mark is the client’s property.

A mark allows a customer to choose a product or service sold by an authorized source and to avoid products or services sold by unauthorized sources. The customer does not need to know the actual name of the source; instead, the customer only needs to know that any product or service bearing a particular mark comes from the same source. This knowledge provides the customer with reasonable assurance of receiving a desired combination of quality, price, and any other important attribute that the source routinely provides for its associated goods and services under the mark.

A copyright provides the owner with a bundle of exclusive rights for an original work of art reduced to a tangible medium of expression. A copyright can cover written and dramatic works, film, photography, music and software, but it cannot extend to an idea, procedure, process or system. Those exclusive rights include: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Copyright protection exists simply by creating a work. However, there are legal benefits to both registering a work of art, preferably before publication or very soon after the first publication, and affixing a copyright notice onto any copyrighted works.