When you start a business, you probably have visions of huge success. At the same time, it can be difficult to plan for it when you are sitting in your home office or garage and just getting started. Unfortunately, this is when many of the most important steps are required to be taken. One is picking a mark to identify your products or services.

A mark is simply something that identifies your products or services to consumers. Classic examples of this include “coca cola”, the Nike Swoosh and many others. When you see one of these marks, you immediately identify them with the company and product in question. In legal terms, the mark is indicative of a certain quality of products or services.

When coming up with your mark, you have to be careful. Not everything can be trademarked. For instance, “Google” is unique and clearly something that can be trademarked. When you see the Google logo, you know it refers to a search engine that allows people to find things on the web. Now, what if Google was instead called “search engine?” The phrase is already commonly used and associated with other sites providing search functions for consumers. As a result, it cannot be trademarked.

Imagine if Google could not be trademarked. Every other search engine could use the term in their marketing and on their web pages. This would cause massive confusion among consumers. More importantly, those consumers would be diverted to competitors of Google. Do you think that would hurt Google’s bottom line? You bet.

When starting a business, try to use distinct names and logos that are not common place. Get your trademarks. As the business grows, consumers will come to know your mark and identify it with your product or service. This, of course, is the key to getting them to come back and buy from you.

Richard A. Chapo is with SanDiegoBusinessLawFirm.com – providing trademark registration services. Article Source: http://EzineArticles.com/?expert=Richard_Chapohttp://EzineArticles.com/?Using-A-Mark-You-Cannot-Trademark-Be-Careful&id=453283

A trademark is a symbol or sign that an individual or an organization uses to identify products and services that it has developed as its own. Basically, it assigns ownership rights to you for specific products and services you have developed. A trademark is something that an individual or organization uses to identify specific products or services as their own. You may register your trademark with the US Patents and Trademarks Office (USPTO). If your trademark is registered, you are allowed to use the ® sign. Otherwise, you can use the TM or the SM sign.

Legal Issues Involving Trademarks
However, your right over the trademarked product is valid regardless of whether you register it or not. Owning a trademark gives you the right to start legal proceedings against anyone who uses your trademarked product or service without prior permission. A person who uses your trademarked product or service without prior permission is said to be infringing on the product. This is a recognized offense, and is called trademark infringement.

Enter the Trademark Attorney
So whom would you turn to for help if you want to initiate legal proceedings against someone who is using your trademarked product or service without prior permission from you? This is where the trademark attorney can make a big difference. A trademark attorney is basically a lawyer who deals with all legal aspects of trademarks. Trademark infringements happen to be one of the things they deal with. Just as criminal lawyers specialize in criminal law, trademark attorneys specialize in the field of trademarks.
In USA, lawyers do not have to undergo any specialized training to be trademark attorneys. This is not the case in Commonwealth countries like the UK, New Zealand, Australia, etc. In these countries you must clear certain exams and be duly qualified to practice trademark law.

Applying for a Trademark
How do you apply for a trademark? Does it involve a convoluted process? To apply for a trademark, you must first fill up an application form. The application form must contain the name of the individual or organization filing for the trademark. Besides, it should also contain a legitimate address to which the USPTO can forward any correspondence and a proper drawing of the mark. Other things the application must mandatorily have are the listing of the product or service you wish to trademark and also the filing fee.

You can get the application at the website of the USPTO. You can make use of the Trademark Electronic Application System (TEAS) to file your application with the USPTO. If you do not want to file the application online, you can get a printed form from the USPTO and mail it to the organization after filling it up.

While the USPTO encourages online filling of the application form and even sending it by mail, it does not encourage facsimiles of the application form.

Some Facts about Trademarks

Here are some more interesting yet relevant facts about trademarks. You do not necessarily have to be an American citizen to apply for a trademark with the USPTO. However, in case you are not an American citizen, in your application form you need to mention the country whose citizenship you hold. It may be that you hold dual citizenship. In such a scenario you must specify which country’s citizenship you wish to be displayed on the official gazette as well as the registration certificate.

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A trademark is the mark used to communicate that the product is both protected under trademark law and is the property of the mark owner. An example of a trademark would be the M symbol used for McDonald’s products: Anything produced by them would display the symbol of protection and ownership which consumers now recognize across the globe.

The word trademark is often used to describe any kind of protected mark, but technically speaking it is only the mark itself that is used to distinguish the word, name, symbol or device from all others.

Service marks are like trademarks, accept they protect and distinguish services only. The symbol used to represent a registered service mark is “®”.

The name of the company or firm is registered and protected as a trade name mark. This doesn’t protect the services offered or any symbols used, so the relevant protected mark should be applied for to cover them. For example, Stacy’s Unique Massages would need to be registered as a trade name and the unique massage style would be registered as a service mark. In most cases trade names can only be protected if a corresponding service mark or trademark is also registered.

Another protected mark is a certification mark that protects seals of approval and goods from specific sources. Examples could be the Heart Foundations Seal of Approval and Bundaberg Rum, and both goods would require a certification mark.

If goods are being produced collectively by a group of owners, the protected mark required would be the collective mark. A group of artists producing posters under one company name would use a collective mark for branding and protecting their work, although the designers vary.

Other areas of trademark to consider when registering your company or goods are trade dress and product configuration, which refer to the packaging and shape. If your goods are uniquely packaged and originally shaped, you will want to protect the designs with a trade dress mark or a product configuration mark. If you are considering applying for one of these you should definitely do more research to understand the specifics.

Simply registering a trade name mark for the title of your company will not provide you protection over all areas of your business. If you are unsure about exactly what protection you need for your words, names, symbols or devices, it could be a good idea for you to hire a trademark attorney to look after the legalities for you. There could be nothing worse for an entrepreneur and inventor than believing you are fully protected only to discover too late that you didn’t have all your bases covered.

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A trademark is a unique form of intellectual property. Most intellectual property is created to protect the person or business creating it. A patent, for example, is designed to protect the inventor from having other parties use it without consent. Copyright works much the same way. A person who writes a hit song should receive compensation from it and copyright is designed to protect the person in this regard.

A trademark is unique because it performs two purposes. The first is similar to patents and copyrights. A trademark is a way for a person or business to protect a logo, etc., from the misuse by others. In truth, this is pretty much the underlying idea of most intellectual property. The only time a protected intellectual property right can be legally

Trademarks, however, also serve a secondary purpose. This purpose has its basis in something called public policy. Throughout the law, you will find guidelines that are set forth as a matter of public policy. These guidelines essentially are designed to help the general pool of consumers in some way.

With trademarks, there is a strong public policy supporting their establishment. The policy has to do with consumer confusion and the quality of products or services. When a consumer sees a trademark, they associate a company and level of quality with that mark. For instance, a person associates a certain cola drink with the “Coca Cola” trademark.

When a trademark is allegedly infringed upon, the court will evaluate the issue of whether the alleged infringement is such that it is likely to confuse consumers. If it is, then a ruling of infringement is more like. For instance, assume Reebok started selling a sneaker that had a swoosh similar to Nike. The swoosh, however, was vertical instead of horizontal. Nike would certainly file suit for trademark infringement claiming that the Reebok swoosh created confusion among consumers. It would also win!

When considering whether to trademark your logo, etc., you need to evaluate how it helps consumers identify with your product or service. The more distinct your mark, the better chance you have of both being approved for a trademark and then defending it against competitors.

Richard A. Chapo is a trademark lawyer with SanDiegoBusinessLawFirm.com

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It may be possible to file for a trademark for the slogan as long as it’s used to indicate & identify the source of goods/services.

If we’re talking about a merely informational slogan or a slogan that conveys advertising information, it’s not eligible for trademark registration.

Let’s take a look at what the USPTO says (and then what that actually means):

“Slogan or phrases used on items such as t-shirts…have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating source of the goods.”

What that essentially means is that if your slogan is merely displayed on the goods themselves and is NOT identified as the source, then the USPTO will likely refuse registration. This is a tricky, gray area so seek advice should you have a slogan that you intend to use for products.

“Use of a…slogan to convey advertising or promotional information…is not service mark use.”

The concept is similar to that for goods as described above. Basically, if your slogan describes your service and/or serves as advertising copy, it’s not likely eligible for trademark registration. Again, this is a tricky, gray area so seek advice should you have a slogan that you intend to use for services.

After reading this it may seem impossible for any slogan to qualify for trademark protection but really that is not the case. It’s all in how the slogan is used & presented. For example, both Nike’s ® slogan Just Do It ® and McDonald’s ® slogan I’m Lovin’ It ® are Federally registered trademarks.

Shannon Moore is the General Manager for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Shannon directly at 800.340.2010.

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Comprehensive research consists of looking at marks that are similar in Sound, Appearance or Meaning in the pending & registered Federal AND State trademark files as well as the US National Common-Law files.

There is one big caveat when it comes to trademarking domain names and it has to do with usage of the domain name.

“A mark composed of a domain name is registrable as a trademark or service mark only if it functions as a source identifier,” so says the USPTO. Okay, but what does that mean?

Basically, as long as your domain name is the name of your product and/or service, it’s likely registrable. Let’s look at some examples to illustrate this:

Example: The online seller, Amazon.com, has a Federal trademark registration for Amazon.com because it’s the name under which they conduct business. Take a look at their site and you will see that the name is always shown with the .com extension.

Example: The insurance provider, Esurance, has a Federal trademark registration for Esurance because it’s the name under which they conduct business. Take a look at their site and you will see that the name is always shown without the .com extension.

It really comes down to what you’re putting out there in the marketplace. Are your customers going to come to know you & your products/services by your domain name? When you answer the phone, will you be saying XYZ.com? Answer these questions and it will become easier to understand what the next step to take is in trademarking your domain name.

Shannon Moore is the General Manager, East Coast for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Shannon directly at 800.340.2010.

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However, you will need to do a thorough search to be really sure that the name is available. The first step may be being sure you understand what a trademark is in the first place. A trademark is defined as a word or unique name, phrase, symbol, logo, image, design, or may be combinations of these different elements that distinctively identify the service or product you offer to customers; this distinguishes a particular company from their competitors.

Basically, what this boils down to is a symbol or name that identifies your business and keeps it protected from competitors. Also, it makes it illegal for anyone to copy your item without your permission. This is actually enforceable by the government.

The internet is a great tool to use when looking for a free trademark search and is very widely used. You can even use sites that will show you existing trademarks so you know what has already been taken versus coming up with one just to be disappointed that someone else already had your great idea.

Here are a couple of places to perform a free trademark search to see if the trademark you are thinking of is already taken.

The USPTO – United States Patent and Trademark Office – has a website where you can do searches of existing federal trademarks on file. While you are bumping around on the site, check out the depository and download it for later reference. There is also a spot where you can look at a list of goods that can be trademarked.

For example, you cannot trademark a banana, but when you make it a Chiquita, it has been trademarked. It is a good all around site to start with. There is a fact sheet of sorts for the facts of trademarks. Be aware, however, that there are some holes in the site.

For example, if the trademark is on the state level, it will not be on the federal website. Also, the search engine within the site is not intelligent, that is, it does not look for spelling variations, synonyms, word placement and the like. You will have to do that on your own.

The Secretary of States’ websites are also worth visiting. Check to see if your state offers a database that is searchable online. Chances are, this will not include the federal database, or common law databases. Check to see if it is updated regularly and if the search is intelligent to help aid you in your quest.

You can also check the Yellow Pages online. Simply enter the name of a business and leave the rest of the fields blank. This will perform a nationwide search of the name you put in. This is going to be like the United States Patent and Trademark Office site in that the search engine is not intelligent and any variations would have to be put in manually.

By taking advantage of the free trademark searches online, you can gather all kinds of information that may prove useful in your endeavor to register a trademark. If you are not satisfied with what you have come up with, you can also hire a privet company or an attorney.

This is also a good option if you find you do not have the time to search every spelling or word placement variation on several sites. They will be able to perform this detailed search for you for a cost.

You can easily file for a trademark application with the United States Patent and Trademark Office. They are going to make sure there are no trademarks already existing that are similar or exactly like the one you are wising to register. Keep in mind though, that they are not there for the new applicants, but to protect the integrity of existing trademarks.

If the trademark you are trying to file has a resemblance to one already on file, the application will be denied and you will have to start over and submit a new one. This could take months to know if your application has been approved or not, that is why it is so important to do your home work ahead of time.

Joseph Savard has been in the business of trademarking for 15 years now and is the best selling author of the ebook “The Trademarking Handbook” Check out his website for your guide on how to register a trademark now. >http://www.trademarkinghandbook.com

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A trademark is a form of intellectual property. You can trademark words, symbols, names, sounds and even colors that distinguish a product or service. A classic example is the Nike swoosh, a symbol that is well known throughout the world. Unlike patents and copyright, trademarks do not expire so long as they are used and, of course, you pay the United States Patent and Trademark Office to renew them!

When the word trademark is mentioned, most people think it is one thing. In truth, there are variations of trademarks. They differ in a number of ways, so let’s take a closer look.

We’ll start with a service mark. There seems to be a lot of confusion regarding the service mark. It is exactly like a trademark with one noticeable exception. As the name suggests, it applies to names, symbols and so on that identify a service instead of a product. This brings up an important point. The type of trademark for your situation is based on the underlying thing it represents.

The classic trademark is next. Again, we are talking about a symbol, word, name, sound and so on that identifies and distinguishes something in the consumer mind. In this case, we are talking about a product or products. Coca Cola is one of the dominant trademarks of all time. If the phrase is mentioned, you know exactly what it is referring to.

Both service and trademarks have some limitations. When you obtain a mark, it does not extend across all possible forms of commerce. Instead, you have to indicate what class of industry, commerce or business it should apply to. Ultimately, this means a business cannot hog a particular phrase. An example will make this clear.

The biggest online bookstore is Amazon. When talking about books or the internet, the mention of Amazon clearly leads you to think about their site. Does this mean there can be no other Amazon businesses in the world? Of course not. There simply cannot be another online bookstore called Amazon. If I want to open an Amazon Travel business that sends people to the Amazon in South America, I am not going to have any problems.

All and all, trademarks are a fairly simple part of the law. If you wish to protect your products or services, you should definitely consider applying for the appropriate marks.

Gerard Simington is with FindAnAttorneyForMe.com – free daily legal tips.

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Most people think trademarks are logo oriented. In some ways, this is true. The Nike Swoosh is clearly a logo trademark that stands out in peoples minds. When you see it, you immediately think of Nike and its products. While logos can clearly be trademarked, what about a business name? The answer is both yes and no.

A trademark is a consumer oriented thing. While it protects the intellectual property of businesses, it is a legal step designed to protect consumers. The basic idea is a trademark should point to a particular product or service and only be used by the company backing those items. This helps consumers in two ways. First, it represents an assurance of a particular type of quality associated with the products or services provided by the company. Second, it precludes other companies from causing consumer confusion by infringing on that mark.

When it comes to your business name, you can trademark it if certain requirements are met. I am going to avoid the legal mumbo jumbo that confuses people, and stick with a general rule of thumb. If you use your business name in advertising or on the product or service, you can trademark it. A classic example is “Google”. Google is both a company name and used on the service itself. When you go to the home page of Google, you see “Google” prominently displayed. As a result, this business name can be trademarked.

If you do not use your business name in a direct communication to consumers, you cannot trademark it. Why? Well, there is nothing distinct about it that reminds consumers of the connect. TJMaxx is a well-known discount retail store. Most people have at least heard of the name. The company behind the name, however, is actually TJCos. Nobody has heard of “TJCos” and certainly do not associate it with a store. As a result, this business name would be difficult to trademark, if not impossible.

If your name is going to be a fundamental part of your marketing effort, you should consider trademarking it. If it is not, then your probably should save your money. Obviously, each situation is different, so make sure you speak with legal counsel in your area.

Richard A. Chapo is a trademark lawyer with www.SanDiegoBusinessLawFirm.com.

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Through traditional advertising methods, you have already invested resources promoting your company and its brand names. There is an additional legal step you can take, however, to boost your brand’s value and your company’s prestige: register your brands with the U.S. Patent and Trademark Office in Washington, D.C.

Many businesses, as a matter of course, file federal trademark applications each time they roll out a new product, logo, slogan or name. For example, in 2006 the number of trademark applications filed with the U.S. Patent and Trademark Office reached a record 354,775. (“Performance and Accountability Report Fiscal Year 2006 Other Accompanying Information,” U.S.P.T.O.).

If you run a business, you may already hold a treasure trove of trademarks eligible for federal trademark registration. The law defines a trademark as including “any word, name, symbol, or device or any combination thereof” used by any person “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C. §1127.

In lay terms, a trademark or service mark (similar to a trademark, but covering services instead of goods) is simply a business’ brand. Examples of trademarks include the words Chevrolet, Microsoft and Ben & Jerry’s. A mark may also be a slogan, such as American Express’ Don’t Leave Home Without It.. Logos — such as the Nike “swoosh” design — also qualify as a trademark. A mark can even be a distinctive sound (such as the roar of the Harley-Davidson motorcycle).

Below are the top 10 benefits of registering your trademark:

1. Nationwide Protection. How can you garner legal protection across the United States? In the U.S. you generally acquire rights by using the mark in commerce (e.g., sell products or services with the mark). However, these rights may be limited to those areas in which you were the FIRST to actually USE the mark and to those zones in which you would be expected to naturally expand. Therefore, if someone begins using “your” mark in a particular locality, they can claim that they own the mark (at least in that locality) and that you are the infringer. However, a federal registration is valuable because creates a legal presumption of ownership nationwide. Without a registration, your trademark rights may be limited to the geographic regions and goods/services in which you first used the trademark. More importantly, you can secure nationwide protection even before you actually use your mark. This is accomplished by filing an “intent to use” application. If the application is successful, you will have a priority date of the date of the application.

2. Company Asset. The registration becomes a valuable company asset. In fact, the single most valuable asset in the world is the COCA COLA registered trademark, estimated to be worth approximately $67 billion. (“The 100 Top Brands 2006,”Business Week and Interbrand Corp.).

3. Licensing.. The registration makes it easier to license your trademark – allowing you to receive royalties whenever your licensees use your brand.

4. Prestige. The registration gives you the right to use the registration symbol – adding prestige to your company and its products.

5. Immortality. Like a diamond, a registered mark can last forever so long as you continue to use it and renew it. Some of the oldest U.S. trademarks include “Samson” (first used in 1884 and registered in 1906) and the Bass bear symbol, a red triangle (first used in 1856 and registered in 1921). Thus, for a relatively small investment, you could own a registered trademark that could be literally immortal.

6. International Protection Potential. You can use your U.S. trademark registration to obtain trademark registrations in foreign countries.

7. Lawsuit Rights. The registration gives you the right to recover statutory damages against a trademark counterfeiter, which can be as much as $1 million per mark. Further, the registration creates a legal presumption that your mark is valid, that you are its owner, and you have the exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate of registration.

8. Incontestability. After five years of continuous use in commerce, your mark can become “incontestable.” This means that the registration cannot be attacked because of prior use or descriptiveness. So, the sooner you register your trademark, the sooner you will enjoy this incontestable” status.

9. United States Customs Can Help. The registration gives U.S. Customs & Boarder Protection (“CBP”), a bureau of the Department of Homeland Security, the right to seize goods that infringe on your mark. Having Customs on your side can be a big help when you find that someone is importing products that infringe on your mark.

10. Certificate of Registration. After your mark is registered, you will receive an official Certificate of Registration. This impressive Certificate makes your “intangible” intellectual property more tangible. It also becomes helpful if you ever decide to sell your business because the certificate of registration shows that your business, in fact, owns the mark.

Applying for a federal registration does have some costs. It can be expensive, time-consuming, and the results are often uncertain. Therefore, it is advisable to obtain legal competent legal representation to help you make your decision.

Finally, this article is intended to present an overview and should not be construed as representing advice on specific, individual legal matters, but rather as general commentary on the subject discussed. The information may not apply to your specific situation. No attorney-client relationship is established by this article.

Alan I. Cyrlin, Esq. is a trademark attorney in Beverly Hills, California. To learn more, visit http://www.ecjlaw.com/bio/AlanCyrlin.asp

You may also contact Alan directly at acyrlin@ecjlaw.com
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Copyrights:

Copyrights can be obtained for things of an artistic nature. This includes, of course, poetry, films, sculptures, music, fiction, etc. But can also include things that may not necessarily seem “artistic” in the general sense of the word. Copyrights can also be obtained for advertising copy, games, software programs and blueprints, to name just a few.

To protect text as it appears on advertising copy, speeches, pamphlets, brochures, online works, reports, etc. a Literary Works application would be filed.

To protect pictorial or graphic items such as technical drawings, posters, labels, games, etc. a Visual Art Works application would be filed.

Only a few items that could be protected by copyright are noted here so if you have other items in mind, please check with the US Copyright Office.

Trademarks:

A “registered trademark”, or ®, refers to a name, slogan or logo that has been officially registered with the United States Patent and Trademark Office (USPTO). Registering a trademark is beneficial to a business because it publicly states that your trademark is registered with the USPTO and therefore, you have exclusive rights to that name within your industry.

Prior to investing your time, money & effort into a name, it is strongly advised that comprehensive research be conducted to ensure that the name you’re interested in is truly available.

This entails searching the pending & registered Federal and State trademark files as well as the US National Common-Law files. Then, if clear, you can decide if you would like to file for a Federal or a State trademark.

Shannon Moore is the General Manager for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Shannon directly at 800.340.2010.

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At first you will need to come up with a name for your business and, of course, a trademark which should represent the name. Keep in mind that you should use a unique name, which must meet all the requirements at the registration office. The business trademark needs to be registered with the United States Patent and Trademark office if you want ensure the protection of your business and trademark.

Both the name and the trademark need to be original and meet the requirements in order to be approved; if you would like, your business name can act as a trademark; all you have to do is to come up with a unique business name.

Your main object is to register your business name and trademark symbol, if you want your activity to become legal and separate yourself from other manufacturers. Not registering your name and trademark could be very tricky, it makes people confused. You shouldn’t use the same trademark as a well known company because their trademark is what makes their products original. And, of course, you wouldn’t want somebody to use your trademark as well.

When registering with the Patent and Trademark Office you are guaranteed that no other companies will use your trademark and sell their products. This is illegal and you can sue anybody who tries that, keeping your business protected. This whole thing is actually what people call intellectual property rights and it acts as a very important aspect of any well respected business. You can also register your design, just to make sure it isn’t copied.

Another advantage when registering is that you have exclusive rights and other companies will not try to copy it. This way you will surely keep your reputation high and will be protected from eventual frauds.

Another important aspect is to try and register as fast as you can, because some people might try to register your trademark. If you really need to register it, you can temporarily do that. The process is called “the poor man’s copyright”. All you have to do is put your trademark design in an envelope, go to the post office and mail it to yourself. When your envelope arrives it will have the date when you sent it and stamps, making it all legal. So if someone wants to steal your trademark all you need to do is to bring that enveloped to the Patent and Trademark Office. It must be unopened, only the staff there at the office will open it and analyze the content.

In order to make things faster and easier, you should hire a lawyer. A lawyer who is specialized in such matters, like intellectual property and trademark laws, will surely help you with the whole process. It can also help you with the design, if it needs changes in order to meet the criteria.

The steps described above need to be followed in order to be approved by the Trademark Office and obtain your registration.

After you managed to resolve this problem, you will have a well protected and respected company.

When just starting a business, ensure you trademark your business and register your business. This will prevent anyone from stealing any of your names and ideas later.

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This write-up will try to reveal some corporate trademark issues and enlighten those individuals who are planning to come up with unique and nice trade names for their own businesses in order to avoid being engaged in trademark infringement.

In the corporate world’s point of view, trademarks are words, symbols or phrases that distinguish or identify companies or their products among the other competitors. This is why it must be distinctive, suggestive, descriptive and/or generic. As a form of advertisement, these marks make it easier for the consumers or clients to recognize the manufacturer of the product or services.

To sight an example, if a customer wants to buy a pair of Nike shoes, he or she may just look for the “swoosh” symbol, which is the trade logo of Nike, to point out the product instead of further asking the customer service assistant.

More so, trademarks also provide protection to a certain product or services from being copied by other manufacturers. And in some cases, trademark protection deals with the other aspects of the product such as its color and packaging other than words, symbols and phrases that single it out from other products.

Thus, both the federal and state laws have certain statutes, which cover those companies that will violate the rights of the trademark owner. The Lanham Act of 1946 which was amended in 1996 is considered the main federal provision which gives the most extensive trademark protection for businesses.

Trademark rights can be obtained by a certain manufacturer or service provider if it was the first to use the mark in business operations. Meaning, if a company is the first to sell a product with its original mark on the market, the said company then will be given priority by the law to utilize that trademark.

However, this advantage is only limited on the area where the product have gained distinction among the consumers. Another way is when the company was the first one to register the mark with the U.S. Patent and Trademark Office (PTO). This manner will give the company a nationwide trademark protection and is not limited to a certain locality if the mark will be approved by the office.

If in case an individual or a company has violated the trademark law, the trademark owner may then file an infringement case against the liable party to be entitled of a wide range of remedies that are mainly in form of monetary relieves.

Afterwards, the court will decide on the case using some factors such as:

* strength of the mark,
* proximity of goods,
* resemblance of the marks,
* evidence for consumer confusion,
* similarity of marketing means
* and the intention of the defendant among others

To have stronger chances of being successful in this court case, the petitioner is advised to seek the assistance of a credible and highly competitive corporate business lawyer to handle their trademark infringement cases. A legal expert will also answer all their questions as regards to this legal matter.

Know more about the Trademarks and other issues involving the Business Law, log on to our website and consult our Los Angeles attorneys.

Rainier is currently among the proud members of the Mesriani Law Group that serves clients in Los Angeles, California. He was tasked to write articles and legal contents to further enhance the knowledge of the internet users regarding Personal Injury, Labor Law, Business Law and Social Security Disability.

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Patent infringement is considered an infringement on a product, or a product enhancement that is patented to an existing inventor or company. For a period nearing twenty years, an inventor or company can hold exclusive rights to a patent, and anyone who markets or presents a product that can only reasonably used for the same purpose is guilty of patent infringement.

A trade secret is typically regarded as a company secret that makes the product different from any other, often this refers to an ingredient such as what makes Corn Pops taste like Corn Pops instead of Corn Crunchies.

A patent attorney may be called in to draw up contracts with employees to keep trade secrets safe, as well as prosecute any trade secret infringements once an employee has left a company. It is illegal for an employee or anyone else privy to trade secrets to open up their own company using the trade secrets they learned while working for another company.

A trademark is typically an emblem, logo design, or other distinguishable characteristic that is easily recognizable as a company’s trademark. A trademark can be the way a name is or brand id displayed, like Coca Cola’s emblem placed up the can or across the bottle.

Trade secrets, trademarks, and patents can all be subject to patent infringement laws, and while these laws are typically complicated enough to require a patent attorney to interpret them, the basis of these laws simply means that nobody is permitted to copy these things without permission.

When trade secrets or trademarks are copied, a patent attorney is usually contacted to assist the defrauded company in determining and prosecuting the offender, as the selling or theft of trade secrets or the copying of trademarks can sufficiently hurt the established company’s business.

Many companies rely on their trade secrets and trademarks to establish something special in the marketplace, and being defrauded means that the consumer is now likely to interpret the trademark or purchase the other brand, believing it is the same product.

When this is not true, the consumer may lose confidence in the defrauded company when the product is not the same as expected. The defrauded company has no way of explaining to the consumer that this product was not theirs without retaining a patent attorney to file a patent infringement lawsuit based on either the theft or sale of trade secrets, or the copying of a trademark.

Once a patent attorney is able to bring the case to court and expose the damage done, the consumer by then has already found either another product or may be leery of wasting money on a product that turns out to be less or even just different than what they expected.

A patent attorney can often be brought on board a project in order to help prevent the infringement of trade secrets and trademarks, and of course patents. This is routinely done in the development stage in order to prevent the company from wasting money and energy on a product or product enhancement that is already covered and protected under patent infringement laws, which includes trade secrets and trademarks.

Patent infringement covers all aspects of business practices that include things such as trademarks and trade secrets. Patent attorneys are able to keep up on the changing laws, which is often invaluable in the development of a new product.

No company wants to spend man hours and money in the development of a product or product enhancement that is like to find them on the receiving end of a patent attorney’s line of questioning. Considering the ample awards that are handed out for patent infringements, it makes financial sense to bring a patent attorney on board to justify the product development.

Naturally, patent infringement is taken very seriously in business law, and the penalties for either a patent infringement, trade secret violation, or a trademark infringement are quite severe. This is just one motivating factor in seeking assistance from a patent attorney before marketing a new product or product enhancement.

In today’s business world, an ounce of prevention is worth about 2.3 million dollars worth of cure. The vast majority of companies simply skip the guess work and retain a patent attorney from the start, and by doing so, thwart their chances of accidentally being guilty of patent infringement, trademark violations, or trade secret violations.

About the Author
Nick Johnson represents individuals or companies with cases involving patent infringement. Find more information at http://www.toppatentinfringementattorneys.com or http://www.toppatentinfringementlawyers.com . Call 1-888-311-5522 to receive a free case evaluation.

Author Profile: johnsonlawgroup

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The good news is that even if you are not the first to come up with your idea, you could very well be the first to do something about that idea. Maybe it’s not even unique. An improvement to an existing product or process could just as well place you on the path traveled by other successful inventors.

There is a lot of specific information I can share with you at this stage, and I will. You need to move from exploring the possibilities, to actually making a profit from your idea. First though, there are a couple of very important things you are going to need. First, you need encouragement, and second, you must be warned that there are predators out there who want to take advantage of you. You face a long, challenging journey ahead. Don’t listen to the naysayers, and don’t quit no matter how much you are tempted to along the way. There are rewards ahead, and they are worth more than your challenges.

Perhaps a bit of explanation about why we are so willing to help you would be beneficial. As a marketing person, I have been approached many times over the years by inventors who need my services. My client, who I provide webmaster services for, is in manufacturing. They also work first hand with inventors. Before you approach either of us though, there are certain bases you should have covered. This information will help you accomplish things in the proper order.

The first thing you need to know is the need for secrecy. If you approach a patent attorney, the very first question you can expect is, “Who else knows about your idea?” There is a fine line between an idea that can be protected, and something that is thrown into the realm of “public domain” because you shared your idea with the wrong parties. One common mistake is checking with marketing agencies and/or manufacturers before seeking legal protection. Don’t do that! When you approach us, you should be armed with a non-disclosure agreement.

If you haven’t already guessed, the invention process will require significant funding. Actually, it will require lots of financial backing if you don’t have your own resources. Don’t let that obstacle discourage you, and don’t succumb to the temptation to share your idea without qualified counsel. There are legitimate sources that want to help people with good ideas get through this challenge. Again, watch out for predators and scams!

Once you get through the preliminary process of making sure your idea can be patented, your other needs include things like design assistance to assure it can be produced, technical expertise, tooling, manufacturing, marketing, graphics, insurance, and more. Working with domestic suppliers is advisable too because your legal rights are often abused if you use offshore sources who are under no obligation to abide by our laws.

Properly handled, your idea has the potential to place you in the ranks of others who have successfully traveled this path before you. I hope our experience can steer you around the common mistakes that could kill your idea before it has the chance to provide the rewards you deserve. Please be sure to check out our Inventor’s Resources for even more detailed information to help you get your idea to market.

Steve Chittenden is the webmaster for H&L Advantage, a lean manufacturer of plastic products. Services include plastic injection molding, design, tooling, and product development. Please visit http://www.hladvantage.com for more information.

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You got a great invention, and you don’t want others to create or use the same invention (or at least nobody can claim they invented it). That’s the kind of protection a patent offers. It gives you exclusivity to create, reproduce and sell the product or process to the public for a particular length of time (most patents nowadays offer protection for a minimum of 17 years). If you want to protect your product, device or process under a patent, then read on.

The United States Patent and Trademark Office (PTO) has its own website where it stores a database of all US patents and trademarks. If your invention is not yet on the list, then you can submit an application for a patent addressed to the Director of the US PTO, which includes a written document of the specification of the invention and a signed declaration. The written document will usually list down the attributes of the invention that sets apart from other related inventions that have been patented already, and the claims of the patent (why the invention is patentable). A drawing of the invention (whenever applicable) is also needed. It can be a simple sketch or a set of formal drawings showing the invention’s parts and/or aspects. For more information about these documents, you can go to http://www.uspto.gov/web/offices/pac/doc/general/index.html#app

Fees will depend on the invention you’re trying to patent. The PTO website has a list of all applicable filing fees and the schedule on filing them. If you’re an independent inventor or if your company (with less than 500 people) created the patent, the filing fee is $380; for larger companies it will be $760. Depending on the patent maintenance, you may be required to pay additional fees as well, sometimes exceeding more than $3000.

The assistant commissioner for patents at PTO will process your patent application, after which he/she will inform you when the patent will be issued. Once the patent is issued, you have to pay an issue fee of $605 for small entities, and $1210 for large entities. You will then be given a patent number, where you can put on your product label to show that your invention is protected.

The above process constitutes a non-provisional patent application. Because it takes longer for regular non-provisional patent applications to get approved (some may take even years), the PTO has provided another way of protecting your invention at a much earlier date. It’s called a Provisional Patent Application (PPA). The application process is somewhat the same, but it’s much faster and need not to submit that much documents. You just pay a minimal amount of $75 to get a PATENTS PENDING mark for your invention. For the next 12 months from the time you file a PPA, you must file the regular patent application to fully protect your invention.

This article does not offer all-inclusive information about patent application, but just a general overview of what happens during the process. It is strongly recommended that you consult with a patent lawyer to give you an explanation of all applicable patent laws and regulations for your invention.

John Luke Matthews is a regular contributor of relevant articles about the jurisprudence of businesses. He is part of the Mesriani Law Group and is currently taking information technology studies as well.

Our Los Angeles Attorneys specialize in all fields of personal injury, business law, social security, and employment cases

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The type of patent we are covering in this article is the design patent. Like the name suggests, a design patent is used to grant the inventor rights to how an invention actually looks. The design patent is unique because it is only given when the inventor has created something that is new, and it only protects the appearance of the invention.

Therefore, design patents are only concerned with the aesthetics of the invention, and not how it is constructed or the materials that compose it. Usually the design patent protects the inventor for a period of fourteen years.

The design patent specifically protects the way in which the invention appears. To be approved for a design patent, the Patent Office must be convinced that the design being patented is unique only to this invention, and nothing else looking like it has ever been made before. Even though the Patent Office will not patent an invention that does not have unique design, any designer seeking a patent needs a design which can be reproduced again. A reproducible design is another criterion for a design patent. Since the design patent is based on the way the object looks, an application will be more favored when it is able to show that the product’s appearance is a result of artistic skill or specific technique.

As previously stated, in a number of cases the design patent is assigned in situations where a utility patent will also be issued, protecting both the function and the look and feel of the invention.

The most common examples of design patents are found within the computer industry. It is not the program functionality that is being patented, but the overall design and interface look. Anyone can write a program that copies a file; a design patent may protect one particular way of showing the files being deleted. As new technology is discovered, computer manufacturers look for more and more ways to protect the aesthetics of their products. A computer such as the iMac is an example of an invention that has both a design and a utility patent.

A design patent may be a great tool that you can use in your business but use this article to make that determination.

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The first type of patent is called a plant patent. It is usually given to people who have invented a new plant hybrid. It is also given when a new variety of plant has been discovered, and the person has successfully been able to reproduce it. Not every plant can be patented; for example, the Patent Office will not issue a patent for a tuberous plant. A plant patent is usually given for a duration of twenty years.

A plant is considered by the Patent and Trademark Office as being living thing that has its own natural composition. The natural composition of a plant is made possible by the genes the plant possess. These genes can be reproduced in an asexual capacity, allowing the genes to be transferred to daughter plants.

The most common forms of plants granted patents are mutants, hybrid plants, and plants which have undergone a type of transformation. A mutant plant can be from one of two sources – discovered naturally, or created. The same is true of hybrids, which can be found in nature or created intentionally.

The general guidelines for determining whether a plant is suitable for patenting are as follows:

• The plant should be different from any other plant that already exists, with at least one change in its composition. When compared with another plant that is a relative, the potential patented plant should have at least one thing different about it.

• The plant must be new. It can be considered new either by having been created in a nursery or greenhouse, or new because of its discovery in nature.

A newly discovered plant, or one that has been created, can only enter into the patent application process if the person who first discovered or created it, makes the application.

• At the time of the application, other people in the plant industry must not have thought it an obvious invention.

• The plant can not previously have been offered for sale prior to the patent application.

• The plant can not have been available to the public for more than one year prior to the patent application. This one year limitation includes the sale of the plant, but also the description of the plant in a publication, such as a botany journal.

In order to quality for a plant patent, the applicant must have successfully reproduced the plant via asexual methods. Many people are not sure of what asexual reproduction means, but generally it results in a next generation of plants that are an exact replica, in appearance and genes, as the mother plant. This is in contrast to reproduction in a sexual way, in which the offspring are not an exact replica. Animals engage in sexual reproduction, and offspring varies in appearance from their parents. Examples of what the Patent Office considers to be asexual reproduction in plants include bulbs, grafts, runners, cuttings from roots, plants created in the layering process, or corms.

Other than using photographs, some people seeking plant patents use regular colored drawings to show the Patent Office the plant they are describing–even hiring a professional artist to produce these drawings for them. In this aspect, plant patents have both components to design and utility patents.

You now have the knowledge that you need to decide if a plant patent is for you.

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You can do a patent search yourself using the patent office website or Google new patent search. The bad thing is if you don’t find anything listed it doesn’t mean a provisional patent hasn’t been filed on it. You just can’t see it. You can spend all of your money on a patent only to find out someone else has a lock on your spot. Also, you will find out that when you license your idea to a company they may want to improve on your idea or modify it in a way that your patent no longer covers the final product. So another patent has to be filed. I call this “What started out a Dog ends up a Cat syndrome” Your original patent money was wasted. I have 6 items on the market and didn’t spend a dime on the patents. The companies licensing the ideas paid for the patents out of their pockets to protect their investment. The patent covers the actual product they are producing.

A provisional patent is cheaper, but starts a 1 year clock. If you don’t get it licensed in that year you HAVE to apply for a full patent or your idea is open to anyone else that will file a patent. Once you start the full patent you are going to spend thousands to get it completed. Do you have the resources to pay for a full patent? ou are also going to wait at least a year or more before the patent is issued.

Full patents are great if you are a large company and can spend hundreds of thousands of dollars to defend your patent. The average person can not afford to go up against a Disney or Mattel sized company to fight off knockoffs. You will lose any profit you made and be in court for years. If you don’t think that is true look at all the knockoffs of patented items on the shelf right now.

A market analysis is a waste of your money unless you are planning to produce and sell the item yourself. If you do one today and you find a company to license your idea they will do their own market analysis and not take your word for it on yours. So, you are paying for something they will do anyway. In the past 5 years I have had only 1 company ask me if I had done a market analysis on that product idea. I asked if they needed me to do one. He said no, they would do their own.
Plus, how long is your market analysis good for? If it has been a year since you had one done and you still haven’t found a company to produce your product is your market analysis still valid? Can you afford to have one done every 6 months or yearly?

You don’t always need CAD drawings or some other technical engineering drawing to get a point across. If you are doing electronic circuitry or something extremely high tech it would probably be advisable. If you are producing a low tech item or board game you don’t have to be as technical. All of my drawings are two dimensional. They look professional, get the point across, are in color and have concise explanations included describing the items function and benefits.

More and more companies are open to looking at outside ideas from Inventors. They see the value of having someone outside the company look at their line and see if they can come up with something that fits. I approach companies using a nondisclosure agreement. Once we each sign the agreement I will submit my idea for review. If they are interested we will discuss royalty terms and licensing.

Since I am not having to wait on a patent I can immediately start approaching companies. This saves me a year or more in waiting to get started. Another point that you may consider is that if you approach a company with your patented idea they will normally offer between 3% and 5% royalty based on the sales. If you approach them with the same idea and it is not patented they will offer you 3% to 5% royalty. So, you are saving the cost of the patent and when you get your first royalty check it is profit, not something you are using to make back the money you spent on the patent.

If you would like to see my licensed inventions that are on the market check out my website at
http://www.rogerbrown.net

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Inventors are so worried that someone else may copy their creation and then reap the rewards that they will pretty much patent anything, for fear of losing out on potential millions; as a result, there are some very odd inventions that get patented.

Take the ‘Burp Gas Filtering and De-odorizing Device’; an pen sized invention through which the user burps, and the burp gas then gets de-odorized via a charcoal filter, eliminating any awkward moments at the dinner table. Needless to say – the inventor of this device is still waiting to get a manufacturing deal.

Or how about the ‘Hijacker Injector’ invention designed to combat the modern terrorist threat? The concept is that every passenger seat on a plane would be fitted with ‘passenger disabling apparatus’ that is mounted in and under the seat. The disabling apparatus is comprised of a seat belt buckle lock (which would hold the suspected hijacker in place – as long as they are wearing their seat belt) and hypodermic needle injection apparatus that would ‘instantly sedate or kill the passenger’. This would be operated remotely by the pilot or a crew member. Though we are seeing airplane seats get more advanced with the addition of TV-on-demand, interactive gaming systems and built-in phones, we’re yet to see the lethal injection add-on as standard – and let’s hope it stays that way.

If you have a problem with excess bird droppings, then perhaps the ‘Sanitary Appliance for Birds’, could be the answer. Patented in 1959 this avian nappy is attached to a bird via a leather thong, which would presumably be emptied on a regular basis and then replaced. The target market for this product was never made clear; a pet budgerigar? Or maybe a battery hen or wild pigeon? The fact that bird droppings are still raining from the skies suggests this item never went into production.

Entrepreneurialism and inventiveness are encouraged by most governments around the world – after all, successful ideas lead to the creation of jobs, wealth and prestige, and this means that for the foreseeable future at least, creative minds throughout the UK, (from bedrooms in Birmingham, to serviced offices in London and desks in Durham) will be alive with the sound of inventors brainstorming ideas for the next big thing.

Andrew Regan is an online, freelance author from Scotland. He is a keen rugby player and enjoys traveling.

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Based on a presentation given by a patent depository librarian, we’ve put together 7 simple steps to conduct your own patent search.

Create a list of search terms that may describe your invention. Consider function, use, structure, and effect.
Browse the patent classification categories using your search terms
Determine the classifications that might fit your product. You can use the Manual of Classification to help you.
Research Classes and Subclasses of patents to understand where your product will best fit. It may be able to fit into more than one class.
Put together a list of patents that might be similar to your invention.
Review the individual patents to ensure non-infringement.
Search the references listed in each of the patents, both forward and backward to ensure non-infringement.

Voila, those are the basic 7 steps to conducting your own patent search. It may take you many hours, but you’ll potentially be saving thousands of dollars.

Here is a great in-depth tutorial on how to conduct a patent search. It doesn’t follow the same order of steps we were recommended, but then again, there is more than one way to do this.

*This article is not intended to give legal advice and we recommend consulting an attorney.

About IdeaTango.com:

IdeaTango.com is a one-of-a-kind social networking site specifically created to help inventors act on their great ideas. This “ingenuity community” provides inventors interactive, collaborative, and educational tools to help inventors connect with valuable resources, and one another.

Bryan DaigleInventor, President & Founder of IdeaTango.com – the #1 site for inventors

Article Source: http://EzineArticles.com/?expert=Bryan_Daigle

There are a slew of books that can teach inventors the special legal-ese language needed when writing a patent. One of the most well known books, Patent it Yourself, is written by attorney turned author David Pressman. He’s also written other books, such as The Inventors Notebook, to help you understand the process.

Some software packages exist, such as Patent Ease, so inventors don’t have to start with a blank sheet of paper. They help inventors create a template from which to write their application.

The trick with any patent is to make it broad enough to hinder competition, but specific enough to pass through the examiner. Don’t be discouraged if your application gets rejected the first time (this happens to everyone), just revise and re-file.

Also, it’s been recommended that you don’t write a patent until you have a working prototype since many things change when the idea takes physical form.

Like I said, many people (especially attorneys) would argue that individuals shouldn’t write a patent themselves. Writing patents is like writing in a new language, and the professionals are trained to communicate in this foreign language.

Some of the best advice I’ve heard is for inventors to save time and money by writing the initial draft themselves, then take it to a agent or attorney to review. That way the inventor can save the $300 per hour cost of the attorney, at least for the writing time.

All in all, writing part of the patent yourself can be a good option for cash-strapped individuals. More recommended books.

Bryan Daigle

Inventor, President & Founder of http://www.IdeaTango.com – the #1 site for inventors

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First, let’s mention a few of the items that cannot be patented. If your invention is a process that can only be performed mentally, it is not patentable. The government does not wish to limit what can be performed only in one’s mind. All processes must be able to take some practical form. The same goes for any idea. It must be able to do something useful and tangible.

If your invention cannot do what it is claiming to do, such as perpetual motion machines, controlled and predictable time travel, or machines that produce more energy than they consume, it cannot be patented. It is important to understand that your ideas must be supported by our current laws of physics. As the laws of physics evolve, so to will the laws of patents. You cannot file a patent application on human beings such as clones, nor can you patent atomic energy fueled inventions. If your ideas include patenting a human clone, such as yourself, or a machine, like a watch, clothes dryer, or other item that runs on or uses atomic energy, you will not be granted a patent.

Now that we understand some of what cannot be patented, let’s look at what can. These are the five classes of items and a brief definition of what congress has deemed patentable:

1. Machines can be patented. A machine is any inanimate tool or combination of tools that perform a useful and beneficial result.

2. Articles of manufacture can be patented. An article of manufacture is defined as any physical and or tangible object that can be crafted using possible methods of manufacturer. Again, those methods of manufacture must be supported by current laws of science and physics

3. Process or type of method patent applications can be filed. Process or method is a way of doing or accomplishing a desired result. One recent process or type patent awarded rights to an individual for a new way of holding a gold club. As long as you can prove a useful and beneficial result, your process, including computer programs that just generate random pictures, can be patented.

4. Composition of a substance can be patented. Composition is defined as the special chemical make up of a product. This specific makeup has useful and beneficial results.

5. Any new uses of the first four classes. This statement is very powerful. It allows anything that can be patented, even if it has been patented in one embodiment, to be patented in a new and useful way. If you can prove that an existing patent has a new embodiment, then you have a new patent.

In summary, just because an item isn’t patentable today does not mean it won’t be in the future. You can file a patent for a new embodiment of any item, as long as it produces a beneficial and tangible result, even if it has been patented before. You may be the person who patents a new style of soccer kick, or lead pencil. The possibilities are endless.

Filing a patent can be a long, complicated, and drawn out process, but it doesn’t need to be! For more information on how to efficiently, cost-effectively file your patent application, be sure to visit patentonyourown.com today.

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The USPTO has been specifically set up to help the inventor who chooses to not use, or cannot afford, a patent professional. When filing a patent application, it is important to understand that a patent attorney is not required. Most people, whether they know it or not, are more than capable of completing the entire applications process. Just keep a few simple guidelines in mind and the process will go smoothly.

The most important guideline to keep in mind; you must be thorough. You cannot leave any information out of the original application. As the inventor, you must be certain that all information is contained in the first draft. You will be given just one chance to do so. Once you submit the application for review by a patent examiner, you will no longer be able to add any more. The reason for this is simple. If an application was allowed to be amended with new information, it would change its original scope. The original scope, also known as embodiment(s), must be clearly established from day one.

Another area to consider when you patent on your own; you must have clear drawings. The drawings do not have to be done by a professional draftsperson or accomplished using a computer aided drawing (CAD) program. However, they must be neatly drawn, not contain erasures, and clearly depict what it is you are inventing. If you take your time and not make any careless mistakes you should be fine. Patents have been awarded to many inventors who only used a pen and a sheet of paper to represent their idea. Just make your drawings look as professional as you can.

Lastly, don’t forget the fees. When you have completed your application and are ready to mail it to the patent office, take time to look at the most recent fee schedule. The cost of doing business with the USPTO changes every year. Also, the fees associated with a provisional patent application are different than the ones for a real patent application. If you do not include the right payment amount, your application will be delayed until the proper payment amount is remitted to the patent office.

Every year thousands of individuals apply for patents in the United States. Many of those people have taken the time to learn how to do so, pro se. With proper preparation your attempt to patent on your own will be just as complete as any performed by a patent attorney.

Filing a patent can be a long, complicated, and drawn out process, but it doesn’t need to be! For more information on how to efficiently, cost-effectively file your patent application, be sure to visit http://www.patentonyourown.com today.

Article Source: http://EzineArticles.com/?expert=Stephen_Nightingale

The concept of “intellectual property” in India over the last few years has taken on some epic proportions for a number of reasons. One of the primary reasons, attributable to the growing awareness among the urban Indian population, is of the significance and, more importantly, the commercial benefits in protecting its intellectual property rights both within and outside India. And under traditional principles of intellectual property protection, patent law is to encourage scientific research, new technology and industrial progress. The fundamental principle of patent law is that the patent is granted only for an invention i.e. new and useful the said invention must have novelty and utility. The grant of patent thus becomes of industrial property and also called an intellectual property. And the computer software is a relatively new recipient of patent protection.

The term “Patent” has its origin from the term “Letter Patent”. This expression ‘Letter Patent’ meant open letter and were instruments under the Great Seal of King of England addressed by the Crown to all the subjects at large in which the Crown conferred certain rights and privileges on one or more individuals in the kingdom. It was in the later part of the 19th century new inventions in the field of art, process, method or manner of manufacture, machinery and other substances produced by manufacturers were on increased and the inventors became very much interested that the inventions done by them should not be infringed by any one else by copying them or by adopting the methods used by them. To save the interests of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.

With respect to patentability of software -related inventions, it is currently one of the most heated areas of debate. Software has become patentable in recent years in most jurisdictions (although with restrictions in certain countries, notably those signatories of the European Patent Convention or EPC) and the number of software patents has risen rapidly.

MEANING OF SOFTWARE PATENTING

The term “software” does not have a precise definition and even the software industries fails to give an specific definition. But it is basically used to describe all of the different types of computer programs. Computer programs are basically divided into “application programs” and “operating system programs”. Application programs are designed to do specific tasks to be executed through the computer and the operating system programs are used to manage the internal functions of the computer to facilitate use of application program.

Though the term ‘Software patent’ does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a “patent on any performance of a computer realized by means of a computer program”.

According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents which cover software ideas, ideas which you would use in developing software.

That is Software patents refer to patents that could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e. the form in which they are put in practice (or used) to produce the effect they intend to provide.

Early example of a software patent:

On 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The invention was concerned with efficient memory management for the simplex algorithm, and may be implemented by purely software means. The patent was granted on August 17, 1966 and seems to be one of the first software patents.

CONCEPTUAL DIFFERENCE BETWEEN COPYRIGHT AND PATENT

Software has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. While Software Patenting has recently emerged (if only in the US, Japan and Europe) where, Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.

Further, it should be noted that patents cover the underlying methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies.
The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting.

However, issues involved in conferring patent rights to software are a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patenting.

a) Different Subject Matters

Copyright protection extends to all original literary works (among them, computer programs), dramatic, musical and artistic works, including films. Under copyright, protection is given only to the particular expression of an idea that was adopted and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright.

Generally patents are conferred on any ‘new’ and ‘useful’ art, process, method or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical.

b) Who may claim the right to a patent /copyright?

Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright.

The patent, on the other hand is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to actually apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.

c) Rights conferred

Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by the rights of fair use which are available to the public. Under “fair use”, certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently developed by two different companies, neither would have a claim against the other.
A patent confers on the owner an absolute monopoly which is the right to prevent others from making, using, offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents. Many patent applications cover very small and specific algorithms or techniques that are used in a wide variety of programs. Frequently the “inventions” mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.

d) Duration of protection

The TRIPS agreement mandates a period of at least 20 years for a product patent and 15 years in the case of a process patent.

For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years.

JURISDICTIONS OF SOFTWARE PATENTING

Substantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions.

Software patents under multilateral treaties:

• Software patents under TRIPs Agreement

• Software patents under the European Patent Convention

• Computer programs and the Patent Cooperation Treaty

Software patenting under TRIPs Agreement

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are subject to debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.

According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (…) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the computer-implemented business methods, and software information technology remains uncertain, since the TRIPs agreement is subject to interpretation.

Software patents under the European Patent Convention

Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program “as such” (Art. 52(3)). This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if a computer program is used in the invention.

Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.

Computer programs and the Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international patent law treaty, which provides a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international application or PCT application. Under the PCT, the international search and the preliminary examination are conducted by International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).

CURRENT TREND

However, before we start hailing the advent of a new era and equating the patenting of software in India it would be well worth our while to take a pause and examine the realities of software patenting. We could do this by looking at examples of countries in which software patenting has already become the order of the day, such as in the US and Japan .

United States

The United States Patent and Trademark Office (USPTO) has traditionally not considered software to be patentable because by statute patents can only be granted to “processes, machines, articles of manufacture, and compositions of matter”. i.e. In particular, patents cannot be granted to “scientific truths” or “mathematical expressions” of them. The USPTO maintained the position that software was in effect a mathematical algorithm, and therefore not patentable, into the 1980s. This position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could.

But in 1982 the U.S. Congress created a new court i.e the Federal Circuit to hear patent cases. This court allowed patentability of software, to be treated uniformly throughout the US. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established.

Moreover, Several successful litigations show that software patents are now enforceable in the US. That is the reason, Patenting software has become widespread in the US. As of 2004, approximately 145,000 patents had issued in the 22 classes of patents covering computer implemented inventions.

Japan

Software is directly patentable in Japan. In various litigations in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita won a court order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 covering word processing software.

Indian Position

With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”.

However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.
Hence, the amendment means that while a mathematical or a business method or an algorithm cannot be patented, a computer programme which has a technical application in any industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be construed as technical applications, obviously it opens all software patenting.

In any case, any company seeking to file a patent application for software under the Ordinance should ensure that its invention firstly, follows the three basic tests:

• Inventive Steps

• Novelty

• Usefulness

Therefore, it is important that the software sought to be protected is not merely a new version or an improvement over an existing code.

Further, in accordance with the specific requirements of the Ordinance with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future litigation or claims of infringements being raised, which is a distinct probability even after a patent has been granted.

CONCLUSION

India for its part seems to have adopted the more conservative approach of the European patenting norms for software. But the Ordinance definitely has its use and relevance in today’s India, particularly for our growing domestic semi- conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while allowing the industry to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of real innovations and inventions. This is the reason a patent should always be treated as a “double edged sword”, to be wielded with caution and sensitivity.

Now whether, in reality this will be implemented on a rigid basis or will become broad in scope through application (as in the U.S.), and, more importantly, whether the Ordinance would, in fact, result in increased innovation and inventions in the software industry, remains to be seen.

Article Source: http://EzineArticles.com/?expert=Kartik_Dawar

While searching for articles pertaining to why you should file a patent on your own, I stumbled across an article written almost two years ago. The summary of the article stated the author tried to file a patent without an attorney and it was a huge mistake. It also stated they were not an attorney and wished they had gone about it differently. This caught my attention, so I choose to read on.

As the article unfolded, it became clear to me why the author of the article felt the way they did. They did not prepare for the task of filing a patent. They were working with a friend who was an attorney and it was apparent that the attorney was too busy. Not only did this attorney blow off his client, they clearly did not want to work on the project of patent application writing.

In the end, the author / inventor, struggled through writing a real patent application (RPA) and sent it to the United States Patent and Trademark Office (USPTO) by themselves. A few months later, they were disappointed with a first office action that required a response. Then, they chose to sit on the office action until the last minute, didn’t file a response in the required time allotted, and ended up having to pay fees for filing the response late. So in their opinion, they did not believe it was smart to patent without legal help. I was upset by what the author had surmised.

It was clear to me why the inventor had such a hard time. They were not properly informed about the patent process. Not only were they ignorant of the process, they relied on a friend, who was an attorney for help. It gets better; the attorney was working for free! It’s no wonder why the application process went so amiss. There wasn’t anyone stepping up to take charge to get the job done! Everyone was just waiting for something to happen. Have you heard this saying? There are three types of people in the world; those who make things happen, those who watch things happen, and those who wonder what happened?

When submitting a patent application to the USPTO, it’s important that you take on the roll of someone who makes things happen. Ideas of invention don’t come to most of us very often. These ideas need to be treated with respect and not wasted. Who better to submit an invention to the patent office than the inventor themselves.

In conclusion, make sure you are properly informed when you start a patent application. It is possible to patent without an attorney, as long as you know what logical steps need to be taken. Filing a patent application is easiest when you are the one who makes it happen. Get the information and get it done.

Choosing to patent on your own can be a long, complicated, and drawn out process, but it doesn’t need to be! For more information on how to efficiently, cost-effectively file your patent application, be sure to visit http://www.patentonyourown.com today.

Article Source: http://EzineArticles.com/?expert=Stephen_Nightingale

With the ease of accessibility to patent databases, many companies offering patent services have sprung up over the past ten years. These companies offer a range of services, from performing a preliminary patent search to a full blown real patent application (RPA) filing. Fees associated with each service range from company to company and can range from $249 for a preliminary patent search, to as much as $10,000 for an entire patent application.

If you perform a query on any search engine, you will be inundated with hundreds of thousands of ads and dozens of sales copies offering many different services. It’s sometimes hard to filter out what is pertinent from what is useless verbiage. If you are not careful, it’s easy to become discourage with the immense amount of information you have to digest.

It is important to understand that every service found online can be performed by yourself without incurring huge fees in the process. Patent searches, which are usually advertised for a $1000 or less, can be accomplished by yourself for a fraction of what those companies charge. Many times, the patent search is performed by an individual who is not qualified to do so. They just use services that are equally available to you, but instead bill you for it.

It was after my first patent experience that I learned just how much a rip off these companies are that offer patent services. I had spent over $10,000 dollars of investor capital just to find out that the company was a scam. To my surprise, this type of fraud runs rampant within the patent community and hurts thousands of inventors every year, just as it crippled me.

There was no need to loose that money! There wasn’t even a need to involve investors. I was just ignorant of the patent process. I didn’t know where to look or just how easy it was to patent on your own.

In conclusion, when you have an invention idea do not look past your mirror. The reflection you see is of the most qualified person to manage your own patent application. There are many companies offering many services to inventors; be careful who you entrust with your invention.

Filing a patent can be a long, complicated, and drawn out process, but it doesn’t need to be! For more information on how to efficiently, cost-effectively file your patent application, be sure to visit http://www.patentonyourown.com today.

Article Source: http://EzineArticles.com/?expert=Stephen_Nightingale

What is the process of obtaining a patent on an invention? There are five different steps that must be followed in order to obtain a patent. These include:

• Inventor’s disclosure

• Patentability search

• Filing a patent application

• Patent application examination

• Patent application amendment

The entire process starts when the inventor believes that his/her invention is valuable and requires protection. The process of obtaining a patent begins when the inventor discloses the details of his/her invention in a written form. While making a disclosure, the inventor should specify details such as the nature of the invention, detailed process that has undergone in the development of the invention, its uses and its advantages over the existing methods or articles. There are increased chances of obtaining a patent if the inventor clearly describes the importance of the invention by means of illustrations and drawings. It is important that whatever has been described in written format should be similar to what has been explained through drawings.

Finally, the inventor should sign at the end of the disclosure and specify the date on which the disclosure was made. The document should also be signed by two independent witnesses. This ensures that there was somebody who had witnessed the disclosure made by the inventor.

Once the application is submitted to the Patent Office, the office then starts examining the authenticity of invention. If every thing is in order, the patent is granted to the inventor. If the application gets rejected, the inventor has to make the necessary amendments and re-submit the application.

Usually there are specialized firms that take care of patent applications and it is advisable to use help from these professionals so that the entire process is painless and smooth.

About Author: Pauline Go is an online leading expert in legal industry. She also offers top quality legal tips to investor like:
Free Information On How To Beat A Speeding Ticket , Constitutional Rights And Maslow’s Hierarchy Of Needs, Steps For Getting A Patent

Article Source: http://EzineArticles.com/?expert=Pauline_Go