A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. . . . What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
The subject matter of a patent MUST be:
2. Novel, &
General Information Concerning Patents from the USPTO.
PATENTABILITY--The patent statute sets forth three basic requirements or conditions for determining the patentability of a product or process--utility, novelty and nonobviousness. An applicant must be an original inventor (i.e., not have derived the subject matter from some other source) and must apply within one year of certain events that constitute potential statutory bars (e.g., public use). The Patent and Trademark Office determines the patentability of each claim during examination. After a patent issues, it is presumed valid. However, a party charged with infringement may contest the validity of any claim by showing noncompliance with the conditions of patentability.
1 Chisum on Patents GL1 (2019)
"granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof"
E.g., US 4,787,847 (Sonicare®)
"granted to anyone who invents a new, original, and ornamental design for an article of manufacture"
"granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant"
A trademark identifies the source of goods. USPTO definition:
"A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."
USPTO Trademark Portal
®University of Washington
A trademark can be a word, symbol, phrase, or other type of distinguishing mark. The mark must be sufficiently distinctive (i.e., capable of identifying the source of a particular product).
There are 4 levels of distinctiveness:
|Level of Protection
|Arbitrary or fanciful
|no logical relationship to the underlying product
|evokes or suggests a characteristic of the underlying product
|directly describes the underlying product
|describes the general product category
Grounds for USPTO to refuse a trademark include:
For more information, see USPTO's "Grounds for Refusal of a Mark."
U.S. Copyright Office definition:
"Copyright refers to the author's (creators of all sorts such as writers, photographers, artists, film producers, composers, and programmers) exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display their works. These rights may be transferred or assigned in whole or in part in writing by the author. Unless otherwise agreed in writing, work created by an employee is usually owned by the employer. "
|The duration of most copyrights is the life of the author plus 70 years. For more information about the duration of copyrights, see U.S. Copyright Office, Circular 15.
The U.S. Copyright Office is a separate department within the Library of Congress.
"Original works of authorship" are copyrightable.
Copyrightable works include:
The following are NOT copyrightable:
x Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
x Works that are not fixed in a tangible form
x Titles, names, short phrases, and slogans
x Familiar symbols or designs
x Mere variations of typographic ornamentation, lettering, or coloring
x Mere listings of ingredients or contents
x Works created by federal government employees as part of their job
For more information, see U.S. Copyright Office, Circular 1.
Copyright protection is automatic when an original work is fixed in a tangible form. Registration is NOT required to confer copyright protection.
According to the U.S. Copyright Office, Circular 1, registration of a copyright has the following benefits: