PATENT: WHAT IT IS AND WHAT IT IS NOT
Earlier pages have gone into the history of patents and how they are granted as a right under the U. S. Constitution. Now let’s get a little more specific. It is a grant of a property right to the inventor by his government. the U. S. Government uses the U. S. Patent and Trademark Office (“USPTO”) to grant this right. All the rules are laid down in the U. S. Code.
The term at this point is 20 years from the date your application is filed with the USPTO, of course, as always, with some exceptions. There are almost always exceptions, especially when the Government is looking for money or trying to cover something up. (Soapbox statement) This term only applies to the US and it’s territories and possessions. (Iraq? Not there yet).
The right granted is --- “the right to exclude others from making, using, offering for sale, or selling” the invention in the US - or - “importing” the invention into the US. Notice the word “exclude” above. The code doesn’t give the inventor the right to make, use, sell, etc. - it gives him or her the right to EXCLUDE OTHERS from doing it.
In certain instances this may have some meaning - best left to the attorneys (and one more reason why you need help with your invention).
Some people - maybe even you - confuse a patent with trademarks, and copyrights. Although there is some resemblance in the rights granted under these three different kinds of “intellectual property,” they are different, and serve different purposes.
COPYRIGHT - (notice the spelling, it’s a right - not a write)
A copyright protects an author against anyone copying his/her work. That means literary (book), dramatic (play), musical (song), and artistic (painting, photo) works. A copyright also covers in some instances performing and recording rights. Copyright is also a right granted through the Constitution.
One of the basic differences between a patent and a copyright is this:
- A copyright protects the form of expression of an idea (or subject matter of the work).
- In other words, if you described how a machine worked, how you described it in writing would be protected - but the actual machine (that was your idea) would not be protected.
- Other people could DESCRIBE the machine in their own way, and could make (etc.) the machine freely, UNLESS YOU ALSO HAD A PATENT ON THE MACHINE. The patent protects the idea.
Copyrights are registered in the Copyright Office in the Library of Congress.
TRADEMARK/SERVICEMARK
A trademark or servicemark (after this when I say trademark, it will include servicemark) relates to any word, name, symbol or slogan that is used in trade with goods or services, that is used to show where the goods or services came from, and to distinguish them from others.
Trademarks are used so that the public or consumer is not confused as to where or who the product or service came from. A trademark does not stop anyone from using or selling the same goods or services - they just can’t use the same name - or one that is similar to someone else - at least close enough to confuse the public.
Trademarks do not protect ideas - only how you market your idea (product). Trademarks are also not granted by the US Constitution. they are a product of commerce - and started with the various artisan guilds that would identify their creations with a “mark” somewhere on the product. Look at a piece of silverware or pottery to see what I mean.
There you have the basic differences between patents, trademarks and copyrights - all “intellectual properties.” Just remember,
- copyrights protect the expression of an idea
- patents protect the idea itself (with some restrictions)
- and trademarks protect the symbol that you use to market your idea finished into a commercial product.
The law specifies what subject matter is covered by patents and the conditions that have to be met - which is all controlled by the USPTO. Those requirements will be touched on in other pages on this site. Keep tuned - bookmark please - and come back.
More on patents here: