Intellectual property (IP) refers to patent, trademarks and copyrights. Simply put, patents protect inventions. Trademarks protect brands and copyrights protect written works. Patents, trademarks and copyrights are extremely valuable. What one can do with real property, one can do with intellectual property. This means you can license, sell, assign and will your intellectual property to others. That’s right! You can get paid for your patent, trademark or copyright!
If you are an inventor or entrepreneur, you have some type of intellectual property. Are you taking the proper steps to ensure it is protected? First, it is critical to identify your intellectual property.
Should you patent your invention?
If you’ve invented the next best thing, it is necessary to determine if your invention is patentable. To be patentable, the law requires that your invention be useful and solve a problem, the invention needs to be new or novel and the invention needs to be non-obvious or the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would not have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
Conduct a prior art search to review existing patents, published patent applications and other published documentation to determine if your invention is novel and non-obvious. Doing your search prior to consulting with a patent attorney allows you the advantage of discussing the prior art during your initial meeting. Although there is no duty to conduct a search, a patent attorney can conduct a thorough search to determine if the invention is patentable. A comprehensive search can help to identify potential licensees and help you to identify patentable features of the invention prior to filing a patent application. The search will determine if you invest in filing a patent application, marketing or manufacturing your invention.
Should you trademark your brand name?
A trademark is a brand name. Trademarks include words, names, symbols, shapes, color or sound used or intended to be used to indicate the source of goods or services.
Before applying for a trademark, take a look at your brand to determine its strengths and weaknesses. First, conduct a search online and using the USPTO website to determine if other marks exist that may cause confusion to the source of your goods or services. If your search results show that several others are using the mark, you can change the name of your goods or services prior to releasing them. Imagine labeling 1000 widgets only to learn that you are infringing on a third party’s trademark! It is cost effective to launch a brand that is strong. The search will help you to feel confident that your mark is not likely to cause confusion with others and the search may help you to determine if you are the senior user of the mark. Even if you have already launched your brand, it is not too late to begin the federal trademark process. Trademark law affords the first user of a mark trademark protection. Thus, even if a third party files an application prior to you, you may be able to cancel their mark or oppose their application if you can prove that you used the mark first. Every mark is not registerable at the USPTO. Seek the help of an experienced trademark attorney to help you to outline a strategy for your brands.
Should you copyright your written works?
Copyrights protect your original works of authorship such as literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright protection exists as soon as you “put the pen to paper.” Although registration is not required, if you need to pursue litigation due to infringement, it is required that your work be registered at the Library of Congress. Also, registration may afford you statutory damages and attorney’s fees in successful litigation. Registrations of works within five years of publication is considered prima facie evidence in a court of law.
Everything begins with an idea. Maybe you have the next best idea! Be sure to protect all aspects of your idea to take advantage of your intellectual property rights. It’s better to be proactive than reactive. Take the time to schedule a consultation to ensure you fully understand all of your options.
Andrea H. Evans, Esq. is the Principal of The Law Firm of Andrea Hence Evans, LLC, an intellectual property law firm. Attorney Evans career path is unique since she worked at the United States Patent and Trademark Office (USPTO) for approximately 5 years as both a Patent Examiner and a Trademark Examining attorney after graduating from law school. She is a member of the Texas bar. She is also a registered Patent Attorney. She is a member of the US Supreme Court Bar. The Firm currently represents independent inventors, entrepreneurs, small, medium, and Fortune 100 clients in multiple states and multiple countries with patent, trademark and copyright issues. She is the author of the best selling book, All About Inventing: Everything You Need to Know About Patents From a Former USPTO Patent Examiner & Patent Attorney.