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Below you will find answers to the most common intellectual property questions. We are here to speak with you to answer your individual questions. Call us for a free consultation: (877) 406-5164

Intellectual Property Questions

What is intellectual property?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected in law by patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.

What do I do when I believe my intellectual property has been stolen?

If you discover your intellectual property has been stolen or used without permission, your first step is often to contact the offender. You or your lawyer can send a cease and desist letter requesting the person or company to stop using your work.

If you believe someone has received a patent that infringes on yours, you can submit a “Request for Reexamination” to the United States Patent and Trademark Office (USPTO). A reexamination request is based on the belief that the patent was wrongfully granted because the invention was already described – in this case in your patent. A patent examiner will take another look at the allegedly infringing patent.

Before you can take legal action in a copyright infringement case, your work must be registered with the United States Copyright Office. If it is not, do this as soon as possible, because you cannot recover damages for the time the work was not registered. Similarly, you can’t file a patent infringement suit until the USPTO has granted your patent, but you may be able to recover some damages from the time before the patent was issued.

Depending on the type of infringement, you may be able to file a civil case, a criminal complaint or both. Copyright, trademark, and patent infringement can all be handled in civil court. The various areas of IP law (patents, trademarks, copyright and trade secrets) are complicated, and your rights and remedies differ under each. Some infringements may also be criminal. An experienced IP attorney can help you evaluate your options and determine your best course of action.

How do I select the right attorney for my intellectual property protection? 

Technical Experience: All patent attorneys have to have technical degrees to pass the patent bar, but not all have the same levels of technical experience. You want the attorney that drafts your patent to have technical experience that closely matches your product.

Prosecution Success: The process of getting a patent through the USPTO is referred to as prosecution. One of the best ways to evaluate a patent attorney is the attorney’s success in getting patents through the USPTO efficiently. Loza & Loza LLP is ranked no. 16 nationwide for our highly successful rate of allowance at the USPTO.

 

Patent Questions

What is a patent?

A U.S. patent is a property right granted by the United States government giving the inventor the right to exclude others from making, using, offering for sale or selling the patented invention in the United States for a limited period of time (usually 20 years from the filing date).

When do I need a patent?

You do not need a patent to sell a product or provide service. However, if you want to prevent others from copying your invention, you will need a patent. You will also need a clearance or freedom to operate opinion in order to make sure that your product will not infringe on someone else’s prior patent.

What if I invented something with someone else?

When more than one person contributes to the conception of an invention, each person contributing will be a co-inventor of that invention on the corresponding patent application.

Whenever there is more than one inventor it is best to form a legal entity in which the inventors own an interest (e.g. own shares). The ownership of the invention can be transferred to the legal entity. The internal operating documents of the entity can describe (1) the ownership interest of each inventor (and other non-inventors, if desired), (2) how the invention will be commercially exploited, (3) how disputes are resolved between inventors, (4) what happens if one or more inventors want to proceed but other inventors do not, and (5) many other business considerations.

What is prior art?

In general, “prior art” consists of disclosures or events that occur before a person conceives of an invention, or in some cases before a person files a patent application. To better understand what qualifies as prior art, you can view Loza & Loza Partner Jeffrey Burgess’ flowchart on our website: www.lozaip.com/news/priorart

When does a patent expire?

A U.S. utility patent is generally granted for 20 years from the date the patent application is filed.  Periodic fees are required to maintain the enforceability of this patent. A design patent is generally granted protection for 14 years measured from the date the design patent is granted.

Why should I hire a patent attorney?

Patent attorneys will try to get you the best possible patents. A patent specification is a legal document and requires specialized skills to draft it properly. Your chances of obtaining a useful patent are significantly greater if you use a patent attorney. They will handle the entire application process to ensure nothing is overlooked. More importantly, a patent attorney will prepare and file commercially effective applications that will protect your invention.

Patent lawyers will use their experience and expertise to ensure that the scope of your claim is not too narrow to be useless, or too broad to be open to dispute. They will ensure that there are no loopholes in your patent that would enable competitors to benefit from your invention whilst working around your patent. Their knowledge about the IP rights of your competitors is vital as the stakes can be high. Your IP attorney can advise on the options available for assessing and managing these risks in a practical manner.

How long does it take to file a patent? 

If we receive all the information about your invention before we start drafting your invention, on average it will take between two to four weeks to draft the application for your review. The time frame we can draft a patent application depends on our present workload, the complexity of the invention, and the amount and type of information provided by the client before drafting begins, as well as the number of changes provided by the client after drafting begins. Once the patent application is filed you will have a “patent pending” status.

After filing, the length of time to grant a patent depends on whether you begin with a provisional or a non-provisional patent application. If you choose a non-provisional patent application, the USPTO will place your application in a queue to be examined by a Patent.

The amount of time it will take for your patent application to be examined, and if found allowable, to be issued a patent, will vary. Some technical areas have a longer or shorter wait time because the USPTO groups patent applications based on the invention’s technology and assigns patents to technology groups (known as art units) of examiners at the USPTO for examination. If one art unit has more patent applications in the queue than another art unit, then patent applications assigned to the art unit with relatively more patent applications will wait longer for examination and issuance.

The USPTO offers prioritized examination (also known as Track One) for utility and plant patent applications for a limited number of patent applications per year. To be considered for prioritized examination, the applicant must pay an additional fee to the USPTO. Under the prioritized examination procedure, the USPTO assigns priority status to your application. The USPTO aims to get to a final disposition (allowance or final rejection) of your patent application within 12 months of the prioritized status being granted.

What types of patents exist? 

In the U.S. patents may be available to any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”  Patent protection must be sought by application with the USPTO.

There are 3 types of patents:

Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

 

Trademark and Copyright Questions

What is a trademark?

A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods or services of one seller or provider from those of others and to indicate the source of the goods or services.

When does a trademark expire?

Unlike patents and copyrights, trademarks do not expire after a set term of years. Trademark rights come from actual “use” (see below). Therefore, a trademark can last forever – so long as you continue to use the mark in commerce to indicate the source of goods and services.  A trademark registration can last forever – as long as you file specific documents and pay fees at regular intervals.

When do I trademark my work?

Trademark registration is not mandatory. However, federal registration of a trademark with the USPTO has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.

Do I need a trademark attorney?

While you can file your own trademark application, an attorney will be able to guide you through the entire process. Trademark attorneys will help you choose the right trademark, review your mark, and evaluate its eligibility before you file the application.

What are copyrights?

Copyrights protect original works of authorship, including literary, dramatic, musical, artistic, and certain other works, both published and unpublished. In the United States, the U.S. Copyright Office handles copyright registration that, although not required for protection, does bestow advantages. 

 

 

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