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Patents: A patent is an exclusive right or predetermined monopoly granted to a person by the United States to exclude others from making, using, selling or offering for sell the person’s invention throughout the United States or importing into the United States for the entire duration of the patent term.
Patent Rights: A patent provides a patent owner a government-granted exclusive right over an invention for the duration of the patent term. It allows the patent owner to make financial gains by either exploiting the invention into a commercial product or licensing it to others for handsome royalties and/or other considerations.
Types of Patent: 1) Utility, 2) Design and 3) Plant. Specifically, a utility patent protects the functional aspects of the invention. A design patent protects the ornamental features of the invention. A plant patent protects asexually reproduced distinct and new variety of plants.
Length of Protection: A utility and plant patent protection lasts for 20 years from the date of earliest filing. A design patent protection lasts for 14 years from the date of earliest filing
Types of Patent Applications: An inventor can apply for two kinds of patent applications – 1) provisional and 2) non-provisional. Both applications are filed with the United States Patent and Trademark Office (USPTO).
A provisional application allows the inventor get an effective filing date with the USPTO. A provisional application lasts for one year after which it is automatically abandoned. A non-provisional application would need to be filed during the one-year period to retain the effective filing date.
A non-provisional application allows the inventor to commence the examination process on its merits, gets an effective filing date, and must include valid claims of the invention.
Effective filing date is important: Patents in the United States are now based on a first-to-file system. The person who files first is awarded with effective priority date for the invention. This means that the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention.
Prior Art: Prior art may be defined as any invention similar to Applicant’s invention described in a printed application, or in public use, on sale, or otherwise available to the general public before the filing date of the applicant’s claimed invention. Prior art can also be the Applicant’s claimed invention described in an issued United States patent, in a published United States patent application, or a published foreign application designating the United States and was effectively filed before effective filing date of the Applicant’s claimed invention.
Trademarks: A trademark protects words, phrases, logos, graphic symbols or designs, or a combination of words, phrases, logos, symbols, or designs. Trademarks enable consumers identify the source of the goods or services used in commerce in order to distinguish it from competitors. Trademarks can also be acquired on distinctive shapes or packaging, commonly known as trade dress.
Federal Trademark Rights: Federally registering a trademark permits a trademark owner to protect the mark against potential infringers, who may use similar marks in commerce. It also places everyone on constructive notice and allows the trademark owner to assert trademark rights in a federal court.
Length of protection: Trademark protection lasts indefinitely as long as the owner uses the mark in commerce. However, once the commercial use of the goods or services related to the trademark is ceased, the owner’s trademark protection in relation to those goods or services may also extinguish.
Types of Trademark Application: There are two (2) types of trademark applications – 1) Intent-to-Use, 2) In Commercial Use. An intent-to-use application allows a trademark owner to get a filing date with the USPTO when the mark is currently not used in commerce but are intended to in good faith in the future. In-Use applications are filed when the trademark owner is currently using the mark to identify the related goods and services in commerce.
In-Commerce: The types of commerce encompassed for in commerce use is interstate, territorial, and between the United States and a foreign country. A purely intrastate commercial use does not provide a basis for federal registration. However, if intrastate use directly affects a type of commerce that Congress may regulate, this constitutes use in commerce.
Trademark Search: Trademark searches are not mandatory, but are highly recommended. They avoid pitfalls by highlighting prior registered, pending, and common-law marks identical or closely identical to the owner’s mark. Searches enable trademark owners to save money and help determine whether the mark is strong or weak.
Copyrights: Copyrights protect original works of authorship fixed in a tangible form of expression. A tangible form does not need to be directly perceptible, if it can be communicated with the aid of a machine or device.
Copyrightable works: Copyrightable works include literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.
Non-copyrightable works: Works that are not in a fixed tangible medium (non-recorded, non-notated or non-written), mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents, phrases, names, slogans, ideas, methods, processes, concepts, principles, discoveries, or devices.
Length of Protection: A work created on or after January 1,1978, is automatically protected from the moment of its creation. The length of protection for this work is the author’s life plus an additional seventy (70) years after the author’s death. In the case of a joint work, the term lasts for seventy (70) years after the last surviving author’s death. For works made for hire, for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be ninety five (95) years from publication or hundred and twenty (120) years from creation, whichever is shorter.
Federal Registration of Copyrights: Federal registration of the author’s work provides constructive notice of its copyright. If registration is done before or within five (5) years of publication, it establishes prima facie evidence in court of the copyright’s validity and the facts stated in the certificate. If registration is made within three (3) months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court. For willful infringement, the author may be entitled to damages up to $150,000 per work.
Worldwide Protection: The United States has copyright relations with most countries throughout the world, and as a result of these agreements, copyrights can be honored outside of the United States in many countries around the world.
Licensing Agreement: When a person or entity transforms its intellectual property into licensing, thousands of customers can be generated and millions of monies can be made. A licensing agreement legally binds and allows two or more parties, licensor and licensee, to memorialize a business relationship as it evolves over the term(s) of the agreement.
Anatomy of a Robust Licensing Agreement: A licensing agreement should accurately define the provisions agreed upon by both parties. Amongst several other conditions, the provisions of the licensing agreement should include relevant terms, length of the agreement, grant of intellectual property rights, remedies, termination rights, and ultimately prevent litigation.
Types of Licenses: There are several types of Intellectual Property Licenses. Some of these include Joint Development, Royalty, Patent License, Trademark License, Copyright License (music, books, artwork), development and commercialization, assignment of intellectual property, and software licensing.
Royalties: Royalties can be a big component of a licensing agreement. Typically, royalties can be a percentage of the licensee’s net sales, or an amount per unit of licensed product sold.
Basis of Royalties’ calculations: Parties are free to decide how royalty calculations should be made. Royalty calculations are generally based on commercial requirements of both parties. Some of these include an up-front license fee, ongoing lump sum license fee payments, rolling royalties.
Licensing Enforcement: There are stringent civil and criminal penalties for unauthorized use of licensed Intellectual Property. Licensor’s can file lawsuits to enforce their rights and demand for damages and/or injunction. Licensors can also be awarded actual damages, which may include monies lost due to infringement and/or profits gained by the infringer due to the infringement.