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30 | Patent it YOURSELF If Your Creation Relates To: Acquisition of Offensive Rights in Intellectual Property An Invention. The functional aspect of any machine, article, composition, or process or new use of any of the foregoing—such as circuits, algorithms that affect some process or hardware, gadgets, business methods, apparatus, machinery, tools, devices, implements, chemical compositions, and industrial or other processes or techniques that one could discover from final product, toys, game apparatus, semiconductor devices, buildings, receptacles, and vehicles, cloth and apparel, furniture (functional structure), personal care devices, scientific apparatus, abrasives, hardware, plumbing, parts, alloys, laminates, protective coatings, drugs, 1 sporting goods, kitchen implements, locks and safes, timekeeping apparatus, cleaning implements, filters, refrigeration apparatus, environmental control apparatus, medical apparatus, new nonhuman animals, new bacteria, plant (sexually or asexually reproducible), or anything else made by humans where the novel aspects have a functional purpose. Design. Any new design for any tangible thing where the design is nonfunctional and is part of and not removable from the thing, such as a bottle, a computer case, jewelry, a type of material weave, a tire tread design, a building or other structure, any article, item of apparel, furniture, tool, computer screen icon, etc. Acquire Offensive Rights By: Utility patent (use the rest of this book). File the utility patent application as soon as possible, but within one year of offer of sale or publication, and get a patent. Design patent. File a design patent application as soon as possible, but within one year of offer of sale or publication, and get a design patent. Plant. Any asexually reproduced plant. 2 Plant patent (see PTO Rules 161-167). Trademark. Any signifier, whether a symbol, sign, word, sound, design, device, shape, smell, mark, etc., used to distinguish goods (trademark) such as “Ajax” TM tools or distinguish services (service mark) such as FedEx. The signifier cannot be generic, for example, “electric fork,” and cannot be descriptive unless adequate sales or advertising demonstrate secondary meaning. Copyright. Any book, poem, speech, recording, computer pro gram, work of art (statue, painting, cartoon, label), musical work, dramatic work, pantomime and choreographic work, photograph, graphic work, motion picture, videotape, map, architectural drawing, artistic jewelry, gameboard, gameboard box and game instructions, etc. Trade Secret. Any information whatever that isn’t generally known that will give a business advantage or is commercially useful, such as formulae, ideas, techniques, know-how, designs, materials, processes, etc. Unfair Competition. Any distinctive design, slogan, title, shape, color, trade dress, package, business layout, etc. Using it as a trademark with “ TM ” or “ SM ” superscript and then registering it in state and/or federal trademark offices. Also, you can apply to register federally before using, based upon your intent to use the mark. Placing a correct copyright notice on the work, e.g., “© 1991 M. Smith”; apply for copyright registration, preferably within three months of publication. (See Section P, above.) Keep it secret; keep good records so you can prove you kept it secret. Have employees sign “nondisclosure” or “keep-confidential” agreements and identify it as proprietary information or a trade secret, such as “This document contains Ajax Co. confidential information”; or put it on an invention-disclosure– type form (see Chapter 3) and limit its dissemination using appropriate means. (See Section Q, above.) Using it publicly as much as possible, in advertising, etc., so as to establish a “secondary meaning” to enable you to win an unfair competition lawsuit. (See above.) 1 Orphan drugs (those useful in treating rare diseases) can be covered under the Orphan Drug Act, 21 USC 360; write to the Food and Drug Administration for details. 2 Sexually reproduced plants can be monopolized under the Plant Variety Protection Act, 7 USC 2321; write to Plant Variety Protection Office, National Agriculture Library, Room 500, 10301 Baltimore Boulevard, Beltsville, MD 20705. Also, both types of plants (sexually and asexually reproducible) can be covered by utility patent.
ChaPter 1 | INTRODUCTION to PATENTS and Other INTELLECTUAL PROPERTY | 31 Legal Remedies for Misappropriation of Various Types of Intellectual Property Underlying Mental Creation Legal Remedy for Misappropriation Invention (machine, article, process, composition, new use)— covered by federal utility patent law. Industrial or aesthetic design—covered by federal design patent law. Brand name for a good or service; certification or collective mark or seal—covered by common law, or state or federal trademark law. Writings, music, recordings, art, software, sculpture, photos, etc.—covered by federal copyright law. Confidential technical or business information, not known by competitors—covered by state and federal trade secret law. Distinctive trade dress, informative slogans, novel business layout, etc.—covered by common law, state and federal trademark and unfair competition laws. Patent infringement litigation in federal court. Patent infringement litigation in federal court. Trademark infringement litigation either before or after registration in state or federal court. Also, trademarks can be recorded with U.S. Customs and Border Protection to prevent the importation of goods with infringing marks. Copyright infringement litigation, after registration, in federal court. Trade secret litigation in state or federal court. Unfair competition or trademark litigation in state or federal court. The enforcement of an intellectual property right requires considerable knowledge and experience. For back ground on intellectual property disputes (and to save money when consulting an attorney), consult the Nolo texts, below. • Copyright. The Copyright Handbook: What Every Writer Needs to Know, by Stephen Fishman • Trademark. Trademark: Legal Care for Your Business & Product Name, by Stephen Elias and Richard Stim. • Trade Secrets. Patent, Copyright & Trademark: An Intellectual Property Desk Reference, by Richard Stim. U. Invention Exploitation Flowchart To make it easier to use this book, I recommend you follow a five-step procedure after you invent something. The procedure can be conveniently summarized by the initials RESAM (Record it, Evaluate commercial potential, Search it, Apply for a patent, and Market it). Fig. 1E shows these steps and the other overall steps for exploiting your invention and where the chapter’s instructions for these steps are found. V. Summary The law recognizes seven ways in which intellectual property can be monopolized or clothed with offensive rights: utility patents, design patents, plant patents, trademarks, copyright, trade secrets, and unfair competition. Utility Patents provide a government-sanctioned monopoly on utilitarian inventions. The monopoly lasts 20 years from filing, provided three maintenance fees are paid. The U.S. Patent and Trademark Office (PTO) will grant patents only on inventions that are (a) in a statutory class (machines, articles, processes, compositions, and new uses), (b) useful, (c) novel, and (d) unobvious. The PTO charges filing and issue fees and requires a formal description of the invention with drawings, forms, and claims (legal definitions of the invention). Patents provide offensive rights but are not needed to practice one’s own invention and do not protect an inventor who infringes the patents of others. After a patent expires, its monopoly no longer exists and it becomes part of the vast body of prior art. Design Patents provide a government-sanctioned monopoly on aesthetic or ornamental inventions; the monopoly lasts 14 years from issuance. No maintenance fees are required. The PTO will grant patents only on designs that are ornamental, involve more than mere surface ornamentation, not a natural object, novel, and unobvious. The PTO charges filing and issue fees and requires a brief description of the design with drawings and forms. Plant Patents provide a government-sanctioned monopoly on asexually reproduced plants; the monopoly lasts 20 years from issuance. No maintenance fees are required. The
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Page 7: Acknowledgments My deep thanks go t
Page 10 and 11: 2 3 4 The Science and Magic of Inve
Page 12 and 13: 8 9 E. Make and Sell Your Invention
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ChaPter 4 | Will Your INVENTION SEL
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C H A P T E R 7 What Should I Do Ne
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Fig. 7A—Invention Decision Chart
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ChaPter 7 | What SHOULD I do Next?
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C H A P T E R 12 Going Abroad A. In
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A p p e n d i x 4 Fee Schedule CAUT
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Appendix 4 | Fee SCHEDULE | 475 37
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482 | Patent it YOURSELF A. Patent
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A p p e n d i x 6 Quick-Reference T
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A P P E N D I X 7 Tear-Out Forms No
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Nondisclosure Agreement 1. Parties.
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Invention Disclosure Sheet of Inven
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Form 3-4: Application Data Sheet—
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Positive and Negative Factors Evalu
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Consultant’s Work Agreement 1. Pa
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Searcher’s Worksheet Sheet of Inv
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Form 10-1A: Declaration for Utility
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Form 10-1A: Declaration for Utility
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Form 10-2: Utility Patent Applicati
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Form 10-4: Credit Card Payment Form
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In the United States Patent and Tra
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Design Patent Application—Preambl
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Joint Applicants—Statement of Res
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they may do so with the written con
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Form 16-4: Recordation Form Cover S
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Universal License Agreement 1. Part
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whether or not any royalty payment
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compensation it recovers for any su
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A p p e n d i x 8 Forms Available a
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Index A “A,” correct use of, 20
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INDex | 577 Biotechnology patents e
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Bestsellers The Small Business Star
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Online Legal Forms Nolo offers a la
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Keep Up to Date 1 Go to Nolo.com/ne
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About the Author David Pressman is
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