What is a Patent? * What is a Trademark? * What is a Copyright? * What is a Trade Secret? * What is the Intellectual Property (IP) provision by constitution? * What skills do I need to be an inventor? * What skills do I need to be a Patent Examiner or Trademark Examining Attorney? * What skills do I need to be a Patent or Trademark Attorney?
Most people assume that we only patent mechanical inventions at the US Patent and Trademark Office. On the contrary, we handle more than that. For example did you know that patents can be granted for plants, computer code, super stretchy trash bags and the design of a device like a phone, camera or even a car? When inventions and designs are processed here, they are divided into three specific categories, utility patents, design patents and plant patents.
The reason people get a patent is because other individuals are excluded from manufacturing, selling, using or importing the patented invention without a licensing agreement. It protects your business and your assets and provides you with a legal way to sue those that don't follow the rules.
Now let's talk about the three main types of patents. Utility patents, which are the ones you are most familiar with deal with gadgets, chemicals found in things like drugs, plastics, food additives and fabrics, methods or ways to perform certain tasks like manufacturing a football, creating a new thing like a wristwatch computer or a better way of doing a process like making a better mouse trap. Design patents cover the decorative design like your favorite cola bottle or surface decoration of an article of manufacture or use such as a smartphone body or a car. The protected part of the design is drawn with a solid line. Dotted lines show what is not included. The design must be reproducible and have aesthetic appeal.
Although you can't patent things that are of nature, you can patent a plant that was manipulated by people. Plant patents have been around since the 1930's, when these patents started with different plant varieties or hybrids of roses for specialized color or scent. As the technology for modifying plants has changed, it also incorporated grafting new types of apples onto a tree or hybrid cross breeding two types of fruits such as a plum and an apricot to produce the pluot. The most recent controversial patents are those for genetically modified organisms or GMO's. Genetically modified plants have been made that are tolerant to herbicides, resistant to plant viruses, and produce an insecticide. Other methods covered by plant patents are propagating, breeding or harvesting of materials such as seeds, cuttings, divisions, cell line, transgenic plants, plant genes, plant chromosomes, tissue culture, plant extracts, cut flowers, fruit and foliage to provide a new, distinct, uniform and stable plant variety. Characteristics such as height, maturity, color or other properties must be genetically stable after one or more cycles of reproduction in order to be patentable. The largest numbers of patents granted are for utility patents.
The owner of the invention agrees to provide specific details on how to make or use their invention to the public in exchange for a patent. Plant and utility patents last for 20 years from the date issued but require maintenance fees. Design patents last 14 years from the date issued but require no maintenance fees.
Trademarks can be found everywhere. From the logo on your favorite pair of jeans, to the slogan used in your favorite movie to the fabric pattern of your new handbag or the jingle in a commercial. A trademark can be used in branding your business, a service or a specific product. Did you know that a trademark is more than just a logo? Symbols, words, slogans, designs, scents, sounds and even colors can function as trademarks.
There are lots of restaurants that sell hamburgers, but how can you distinguish one business from another? A trademark can distinguish your business or product from your competition. Everyone knows that a hamburger from the golden arches is not flame broiled. When you purchase a cola from a certain bottler, you want to make sure that it tastes the same each time you drink it. One way to do that is to look for your favorite brand which uses a specific trademarked name and logo.
A service mark is similar to a trademark but it is only used for advertising a certain type of service. The service does not need to produce a specific object for sale. For example, if you use a business service when you need a package delivered, a drain unclogged or eat at a fast food style restaurant and get good service, you will want to use the same service again. You can rely on a standard of service from that business no matter what state or country you are in.
If someone tries to copy your name or logo without your permission or a sell that product that looks similar to yours online, at the side of the road or in a store, it is called piracy. If the product is inferior and the purchaser brings it to your business for a refund, your business and reputation can suffer. You can protect your business name and reputation by registering your mark with the US Patent and Trademark Office. You can sue the person that copied your trademark/service mark or the US Patent and Trademark Office can work with the US Customs Office to seize counterfeit items or the Department of Justice to prosecute computer crimes related to intellectual property.
The US Patent and Trademark Office do not issue copyrights. Copyrights are issued by the Copyright Office at the Library of Congress. A copyright protects "original works of authorship" including literary works, musical works which can include words, dramatic works which include accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, computer programs and architectural works. The term of enforcement is the author's lifetime plus 70 years. More information can be found at copyright.gov.
A trade secret is not disclosed to the public nor is it regulated by the government. It can be a formula, practice, design, device, pattern, information collected or other process that is protected by non-disclosure contracts in private industry which allows a business to maintain an economic advantage over its competitors. Examples are the extra crispy coating on fried chicken or the precise blend of spices in a rub or the syrup mixture of a cola. There is indefinite protection based on contract enforcement via international, federal and state laws.
A patent grant or temporary monopoly has been around before there was a US Constitution. The idea of a patent was modeled on English governance where a patent was granted by the crown to a new manufacturing industry as a way to raise money. When the monarchy was deposed by Parliament in England, the term of the grant was limited to 14 years, provided the exclusive right did not unfairly raise prices on goods.
After the US Constitution was adopted, President Washington requested that Congress enact a patent statute during the industrial revolution to protect the interests of the owner of the technology. The Patent Act of 1790 established the first Patent Board consisting of Thomas Jefferson, Henry Knox, Edmund Randolph and James Madison. US Constitution, Article 1, Section 8, Clause 8 states that "[t]he Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."
The Department of State originally administered patent laws and the US President also signed the issued patent. Eventually, amendments were made to the original patent laws and the US Patent office was moved to the Department of the Interior and later to the Department of Commerce. Other changes were that patent examiners were hired and a Circuit Court of Appeals was created to standardize case law and review patent validity instead of regional circuit courts. Patent laws are still modified by Congress and application of case law is determined by Circuit Court precedence. The most recent change was the America Invents Act.
You need to be part detective, part scientist, part entrepreneur and persistent. Each inventor is very different from one another and some of their biographies can be viewed in the Inventor Trading Card area or the inventor inductee area at the National Inventors Hall of Fame site, invent.org.
Some traits that may be helpful are curiosity, patience, risk taking, creativity, energy or enthusiasm, courage, commitment, perseverance, intuitive, an ability to verbalize ideas, an ability to solve problems, an ability to analyze data or facts, an ability to design experiments, an ability to recognize opportunity, an ability to accept risk of failure, an ability to try a new avenue to solve the problem and an ability to understand different subject matter. Many inventors had to try hundreds of prototypes before their idea worked. There are usually multiple ways to approach solving some problem and there may not be a correct way to solve that problem. Sometimes the originator of an idea will spark those around them to improve upon an idea, therefore teamwork may be an important part of your inventive process.
In Patents, each technology center area requires a minimum of a Bachelor's degree. They need people with varied degrees in differing areas, such as fine art, computers, mathematics, biology, chemistry, engineering, medicine or physics to name a few.
You do not have to be an attorney before applying to be a patent examiner. We have nine different technology centers in Patents: Biotechnology and organic chemistry Chemical and materials engineering Computer architecture and software Network, multiplexing, cable and security Communications Semiconductors, electrical circuits, static memory and optical systems Design Transportation, construction, agriculture, electronic commerce and national security Mechanical engineering, manufacturing, and medical devices/processes.
It is important that you are able to work on your own, have a strong work ethic, have good verbal and written communication skills, have good time management skills, basic computer skills, can deal with tight deadlines and work well with others. New patent examiners receive training on all aspects of laws, rules, practice and procedures in examination of patent applications and how to use the proprietary software at the USPTO.
You will also need to pass a proficiency exam. You can always give it a whirl as a Patent Experience Extern at the US Patent and Trademark Office during spring and fall programs through your University's externship coordinator or contact email@example.com. Another opportunity is an unpaid externship through the Student Volunteer Program for approximately 8 weeks. For more information about the program you can email studentinquiriesTMCO@uspto.gov.
You should have a law degree with at least a 2.1 BSc in a technical or scientific discipline as well as USPTO and bar admissions completed. The specific qualifications that you will need to be a Patent or Trademark Attorney will vary depending on the type of job you are looking for. There are IP departments in Universities, at small boutique law firms, at large IP law firms, at corporations large and small, in various governmental organizations and those in private practice.
There are positions available for those that can communicate well in multiple languages. In general you should have good analytical skills and high attention to detail, be empathetic, persuasive, flexible, decisive, and a strong work ethic. It is important to have good communication skills to explain how competitor's patents affect client's business, to provide a client with an understanding of the invention's patentability, filing strategy and to present arguments to patent examiners in writing, by telephone and in hearings. You also need good writing skills to create technical documents, define and describe the client's invention as clearly as possible, write contracts and or licensing agreements. You should be able to understand technology outside of your current area of expertise so that you can review previously published documents, understand and interpret data and statistics, be able to analyze client notebooks or question scientific expert witnesses during litigation, as well as understand legal concepts and apply them to your client's filing in US and international venues.
You should be able to address all sides of an argument or advocate for both sides of an issue, read, analyze and apply legal decisions, see all issues presented in a given factual situation, be willing to negotiate on a position and able to see how to expand on a client's invention including partnering with marketing and business development. It is vitally important to stay calm under the pressure of deadlines, to make quick and confident decisions in uncertain and ambiguous situations, to handle a high volume workload, to coordinate conflicting priorities and work reliably in short timeframes.