Do I need a patent, a trademark or a copyright?

Patents, trademarks, and copyrights are categories of intellectual property rights, each with its own form of protection:

Patents protect the way a device works (a utility patent would protect for example the mechanism by which your car brakes operate) or the appearance of a useful object (a design patent would protect for example the shape of a Coca-Cola bottle).  Patents are protected through a patent grant from the government, as opposed to trademarks and copyrights which, for the most part, are protected to an extent without the absolute need for a government registration.  Patents confer a negative right, which allows a patent holder to prevent others from making, using, offering for sale, or importing an invention, but does not confer the rights to make or use an invention on the patent holder.

A trademark or service mark protects the association of a mark identifying the source of the good(s) or service(s).  Trademarks occur in a variety of forms, from traditional trademarks such as brand names or designs to non-traditional trademarks such as colors or shapes.  Actual product configurations can be protected as trade dress if the features are non-functional and have come to identify the source of the good.  Trade dress protection can overlap with design patent protection.  Common law trademark protection typically arises from use of a trademark.  However, obtaining a Federal trademark registration serves to perfect the protection and provides a registrant with nationwide constructive priority of use.

A copyright protects an artistic expression of an idea.  Copyright generally means what the name implies–it protects against copying.  For example, a copyright in a photograph of a mountain protects that specific photograph of the mountain.  Copyright does not protect against another going to the exact spot the photograph was taken and trying to take a similar photograph.  Thus copyright protects the individual artistic expression embodied in the first photograph, but not the idea of taking a photograph of the mountain.  A copyright springs into existence whenever copyrightable material is affixed to a tangible medium of expression (for example, when a digital photograph is saved or when a new audio tune is recorded).  However, a copyright registration provides the registrant with the ability to choose statutory damages in lieu of actual damages (which can be difficult and expensive to prove) and with an easier opportunity to collect attorneys fees in the event of a lawsuit.

Can I change the device 10% or 15% and not infringe a patent?

The short answer to this question is NO, patent infringement is not based on a percentage of how close to the original your device is.

Patent infringement is determined by comparing the claims of a patent to the accused devise.  If the device has all of the elements of the patent claim, it is deemed to be an infringing device.  If the accused device does not have all of the elements of the patent claim, it is likely not infringing.

There is one caveat to the above analysis, the doctrine of equivalents.  Patent infringement can either be literal infringement or infringement under the doctrine of equivalents.  Literal infringement occurs when a device literally infringes the claims of the patent, or in other words when the accused device literally has all of the elements of the asserted patent claim.  Infringement under the doctrine of equivalents occurs when any differences between the claimed invention and the accused product are insubstantial.  One way of showing infringement under the doctrine of equivalents is when the accused claim elements or limitations “perform substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented product.” (citation omitted).

Thus, the question of patent infringement is more detailed than “can I change 5%, 10%, 15%, 20%, 25% etc. of the patented product and not infringe?”  The question is does the accused device contain all elements and limitations found in the claims of the patent.

What is the purpose of a patent?

United States Patent law sets forth “whoever without authority makes, uses, offers to sell, or sells any patent invention, within the United States or imports into the United States any patent invention during the term of the patent therefor, infringes the patent.”  35 U.S.C. § 271.  Patents also give you the right to prevent others from selling a component of your invention

Determining if a patent infringes requires an analysis of the claims of the patent as applied to the accused device.  If the accused device has all of the elements found in any claim of the patent, the device infringes the patent.  This is called the “all elements” rule of patent infringement.  For example, if claim 1 of a patent claims elements A+B+C+D, if the accused device has elements A+B+C+D it infringes the patent.  Similarly, if the accused device has elements A+B+C+D+E+F it still infringes on the patent because it has elements A+B+C+D.

If someone is infringing on your patent you may be able to get an injunction, royalties for the sale of the device, damages for your losses due to the infringement, and/or enhanced damages and attorney fees (provided the infringement was willful).  Often a cease and desist letter suffices to halt the infringement, but in some cases the patent owner is forced to proceed to court action to stop the infringement and enforce their patent rights.

Owning a patent can be key to protecting your investment in your technology, particularly if your invention becomes successful.  Companies that you may want to license your invention too will often not even listen to your idea unless you are patent pending.  We highly recommend that you discuss obtaining a patent with a patent attorney (either a patent attorney at our firm or elsewhere) before you go forward with publicly using or selling your invention.

Patentability requirement – Nonobviousness

The term nonobviousness is a legal term of art in the patent world.  The question is would the invention have been obvious to  a person having ordinary skill in the art (a PHOSITA) at the time of invention.  While this appears to be a simple question, it requires a significant amount of analysis to determine if an invention is obvious or if it falls under the non-obvious category and thus suitable for being protected by a patent.  The Manual of Patent Examination and Procedure (commonly called the MPEP by patent practitioners) defines the obviousness bar as stating “A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.”  See MPEP 2141.

The framework for deciding what is, or is not, obvious was set forth by the United States Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966).  In sum, the considerations set forth by the U.S. Supreme Court focus on if a PHOSITA faced with a problem would be led, in the ordinary course of proceeding to solve the problem, to the Applicant’s invention as claimed.  If the invention provides more than just a combination of known elements in a new form, it may be patentable.  If the invention provides a combination of known elements in a new form and provides unforeseen results, the invention may be patentable.  The non-obviousness requirement to obtain a patent is assessed on a case by case basis that can quickly lead to a very complex procedure.   If your invention as claimed receives an obviousness rejection, there are a variety of arguments that, depending on the rejection itself, can be used to overcome these rejections.  Additional evidence of nonobviousness, called “secondary considerations of nonobviousness,” can also be used to overcome a patent examiner’s obviousness rejection.

Each foreign country or entity has its own requirement akin to the nonobvious patent requirement set forth in the United States.  In Europe, a comparative term is the “inventive step” requirement, meaning did the inventor have to undergo an inventive step to reach the application.  Each of these individual countries has a different standard for determining what is patentable, and it may be easier in some countries to obtain a patent and more difficult in other countries to obtain a patent.

Our patent attorneys can assist you in overcoming an obvious to try patent rejection or to draft your patent application to try and avoid these patent rejections whether you or located in Boise, Idaho, elsewhere in the United States, or abroad.

Patentability Requirement– Novelty

One of the requirements for receiving a patent on an idea is that the idea must be novel, or new.  This requirement is found at 35 U.S.C. 102.  In general, the novelty patent requirement means that the idea as claimed in the claims of a patent application is not found in a single reference that pre-dates the date of filing of the patent application.  A reference is considered as “anticipating” an invention as claimed if the reference has all of the elements, either expressly or inherently, of the invention as claimed.  If the invention is novel, it has one or more elements or a combination of elements that is/are not found in a single prior art reference.

The Manual of Patent Examination and Procedure (or MPEP as it is commonly called by patent attorneys and practitioners) states that “[a] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.”  See MPEP 2131.  In order to overcome a novelty patent rejection, typically an inventor must show that each element found in his or her patent application claims is not found in the single reference cited by the patent examiner.

Typically a patent search performed by a patent attorney will provide you with an accurate  opinion on whether or not your invention is novel and the potential for obtaining a patent from any patent application you file.


Patentability requirements – Useful Requirement

In order to obtain a patent on an idea, that idea must be “useful.”   In other words, the idea must have some useful purpose.  The “useful” patent requirement is a low standard and typically easy to meet.  Typical exceptions to the useful requirement occur in perpetual motion machines, which do not serve a typical “useful” purpose and chemical compounds that have no known use.  Useful rejections are rarely encountered when filing a patent application.

When should I file for a patent?

If you have an idea that you view as worth protecting, you should file a patent application before you disclose the idea to any third parties.  In the United States, you have a 1 year grace period from the time you publicly use, disclose, or offer for sale your idea to file for a patent.  If you wait past that time, your idea is deemed to be in the public domain and you are barred from obtaining patent protection.  Many foreign countries do not offer any grace period and any public disclosure prevents you from obtaining a patent application.

The U.S. and most, if not all, foreign countries use a first to file patent system.  This means that the first person or company to file a patent applications gets the patent, regardless of who invented it first.  One exception is that if the inventor can prove that the earlier filer derived (or stole) the invention the subsequent filer is entitled to the patent.  The first to file system has placed an added importance on filing as soon as possible.

The purpose behind the patent system is that in exchange for you disclosing your idea to the public to further the arts and sciences, the law provides you with a 20 year pseudo-monopoly on your idea.  This gives you a 20 year exclusive right to sell your idea, use your idea, offer to sell your idea, to make your idea, and to import your idea.  After the 20 year period, your idea becomes a part of the public domain for anyone to use.  If your idea is already in the public domain, their is no incentive for the government to provide you with any exclusivity in the idea in exchange for your public disclosure of the idea.

Foreign Patent Protection

How do I get a patent in a foreign country?

In order to have patent protection in a foreign country, a person or company must have a patent in whatever entity or jurisdiction provides patent rights in that country.  This can mean having a patent in each individual country or obtaining a patent through a broader protection entity, such as the European Patent Office (or EPO).  There are several mechanisms to obtain a patent in a foreign country, the most common method for our United States clients is to file a U.S. patent application (either a provisional or non-provisional U.S. patent application) to obtain a priority date, and within a year file a PCT (patent cooperation treaty) application that designates potential future countries or entities in which the patent applicant intends or is considering seeking patent protection in.  Within 30 or 31 months (this time frame depends on the rules of the foreign country in which protection is sought) from the date of filing, the patent applicant must file separate patent applications in each individual country in which patent protection is sought.  This is typically considered filing a national phase entry application.  The stage of national phase entry is typically the most expensive phase as the patent applicant must hire patent attorneys or agents in each of the countries or associations in which protection is sought.  Alternatively, a patent applicant can file directly in individual countries and not file a PCT application.

The attorneys at Shaver & Swanson, LLP have filed for patent protection in a wide array of foreign countries, including Brazil, Canada, Mexico, Turkey, Australia, China, South Korea, Japan, and wide range of European countries including filing EPO patent applications for protection in the European Union (EU).  Our attorneys are adept at counseling on and obtaining foreign patent protection.

State and Federal Trademark Registrations

Should I get a state trademark registration or a federal trademark registration?

Both state trademark registrations and federal trademark registrations are very beneficial to both individuals and companies.  State trademark registrations typically provide constructive priority throughout the state in which the registration is obtained.  Similarly, federal trademark registrations provide nation wide constructive priority.  A company or individual should typically obtain a State trademark registration when they are involved in intrastate commerce meaning they operate solely within one state and/or are local companies.  Typical examples would be small, non-online stores, lawn care companies, beauty salons, and local restaurants and bars.

Obtaining a federal trademark registration requires that the company be involved in interstate commerce, or commerce that crosses state lines including if the company has an internet business presence.

Obtaining a federal or state trademark registration can be very beneficial to a company.  This includes providing priority over subsequent, or junior, users in the event the trademark registration holder expands to a new market.  If there is a company using the same trademark in that market but it is a junior user, the trademark owner may be able stop the junior user from using the mark.  Similarly, if a large company begins using the trademark after your use of the mark, it is much easier to prove that the trademark registrant’s use of the mark pre-dated the subsequent user’s use if the trademark registrant possesses either a state or federal trademark registration pre-dating the subsequent user’s first date of use.

At Shaver & Swanson, LLP we highly recommend trademark users obtain either a federal or a state trademark registration, or in some situations both, to protect their trademark rights.


What is a Federal Trademark Registration?

A Federal trademark registration (as opposed to a state trademark registration or common law trademark rights) provides constructive nation-wide notice that you are using a mark on the goods and/or services listed in your trademark registration.  In sum, the U.S. Congress expanded common law trademark policy through the enactment of the federal trademark registration system. The federal trademark registration system provides constructive notice to other participants in the marketplace and prospective participants in the marketplace that a registrant is using the federally registered trademark and the federal registration system establishes priority in the rights afforded to the registrant. Federal trademark registration benefits the registrant by providing nationwide notice that the registrant is using the mark, benefits participants in the marketplace by allowing the participants to “rely upon a search of the trademark registry and their own personal knowledge of whether the mark has been used so that what may be substantial expenditures of money promoting the mark will not be wasted,” and benefits the consumer by allowing the consumer to rely on a trademark of a good in making a purchase without having to worry about purchasing a good of different quality than expected. Natural Footwear, Ltd. v Hart, Schaffner & Marx, 760 F.2d 1383, 1395 (3rd Cir. 1985)

In sum, a Federal trademark registration provides your company with a legitimate priority date and, in the event other companies unknown to you have been using the mark, locks in the territory of those prior users. Without a federal trademark registration, it is a race between the parties to establish customer recognition, i.e. secondary meaning, of the unregistered mark in unoccupied territory.

Common law trademarks

How do I get a trademark?

While a Federal trademark registration or a state trademark registration is greatly preferred, in general, Trademark protection ensues under the common law of trademarks as soon you begin using the name, but only as far as the area in which you are using the mark, provided that the trademark is protectable and not a generic word for your goods or services.  The U.S. Supreme Court described this principle in stating that a mark is protectable as far as it is known, but this protection does not sch to markets where goods bearing the mark have not traveled.  For example, a small hair salon in the North End of Boise, Idaho may have rights in its name in the North End, or perhaps even as wide as the entire Treasure Valley depending on its marketing and client range.  However, this hair salon may not be able to protect its name as far away as Portland, Oregon, New  York, or California.

The United States Supreme Court described the principle of trademark law and set forth the boundaries of common law trademark rights in Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916). In Hanover, the United States Supreme Court illustrated that the purpose of trademark law is to protect the good will of a trade or business by identifying “the origin or ownership of the article to which it is fixed.” Id. at 412. The rights afforded to an entity through its trademarks grow out of use of the trademark and through the good will that becomes associated with the trademark. Id. at 413. Trademarks are treated as merely a protection for the good will associated with the mark, and not the subject of property except for the limited extent the marks are used in connection with an existing business. Id. at 414. The United States Supreme Court in Hanover summarized the geographical limitation of a trademark when it stated “the mark, of itself, cannot travel to markets where there is no article to wear the badge and no trader to offer the article.” Id. at 416.

In order to obtain trademark rights under the common law for a descriptive trademark, your mark must have acquired secondary meaning.  This means that the consumers in an area associate that mark with your business or product, as opposed to associating the mark as a description of the goods or services you offer.

The Internet has greatly complicated the analysis of how far a common law trademark’s rights stretch.  Does an online company who has a few sales across the country have nation-wide rights?  Probably not, but determining just how far those rights stretch is a very complicated, expensive argument to make in court.

State or Federal trademark registration greatly helps in clarifying rights and puts others on notice that you are using your trademark and helps to avoid the expense and issue of proving a common law trademark.  Please do not hesitate to contact us to assist you in furthering the protection of your trademark.

Patents Bob Shaver and Scott Swanson have obtained

Recently issued patents.

Foreign trademark protection

What if I want to have my mark registered in other countries?

  • If your products are to be sold in other countries, you may wish to register trademarks in those countries. A Foreign Trademark Registration is generally acquired on a country-by-country basis, and trademarks registered in foreign countries do not affect your registration of the mark in the United States.
  • If a trademark is already owned or an application has already been filed in the United States, the owner may file for foreign protection under the Madrid Protocol, rather than filing in each country separately. Filing under the Madrid Protocol can reduce costs considerably if more than one foreign registration is sought.
  • Shaver & Swanson, LLP has a network of international trademark attorneys that can handle your trademark protection needs anywhere in the world.

Utility Patent Protection

What qualifies for utility patent protection?

  • Section 101 of Title 35 of the United States Code states that “any new and useful process, machine, or composition of matter, or any new and useful improvement thereof” can be the subject of a patent. This can include new devices, new methods or processes, improvements in existing devices or methods, methods of doing business, software, new uses of existing technology, Internet methods of doing business, recipes, formulas and systems.
  • Section 100 of Title 35 of the United States Code defines the word “process” as meaning a process (leave it to Congress to define “a process” as “a process”), art or method, and includes a new use for a known invention.
  • Things which do not qualify for patent protection include: scientific principles, mathematical processes, mental steps, printed matter, naturally occurring articles, mere aggregations of unrelated parts (a pencil with an eraser at one end is considered such an aggregation), and “any invention or discovery which is useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.” (42 USC § 2181(a)).

An inventor can file for a provisional patent or a nonprovisional utility patent to protect his or her idea.

Provisional Patent Applications

What is a Provisional Patent Application?

  • The “provisional” patent application system was created after the GATT treaty was signed in 1995. A provisional application may be filed without claims, is not examined or even read by anyone at the Patent Office, and, as the “provisional” name implies, is temporary. A provisional patent application expires exactly one year after filing and unless you file a utility application before the end of that one year period, you may be found to have abandoned your invention to the public domain.
  • The three main reasons to file a provisional application are: (1) in an emergency situation where a filing date is needed to protect rights while a utility patent application is prepared (for instance, getting something on file the day before you show your invention at a trade show), (2) where the inventor needs to limit costs while trying to determine if the invention would be commercially profitable, and (3) where the invention is expected to have a long market life span (the provisional application could, theoretically, add an additional year to the term of the patent.
  • Because provisional applications are not examined, they can never mature into an issued patent. There is no such thing as a provisional patent.
  • It is important enough to bear repeating: a utility patent application must be written and filed based upon the provisional patent application within one year (the life span of the provisional application).
  • A provisional patent application cannot claim priority from another application, foreign or domestic.
  • While provisional patent applications were intended by Congress to make filing easier for inventors, these same applications often become a trap for unprepared inventors. The main traps are: (1) missing the one year date (when a provisional application is abandoned, it is gone forever), and (2) inadequate disclosure (if the disclosure is not clear and detailed, the resulting problems may completely void the application altogether). Provisional patent applications also draw out the patent prosecution process, making it longer until you have an issued patent in hand (your competitors can only “infringe” your patent after it issues).
  • Preparation and filing of a provisional patent application typically costs 1/3 to 2/3 of the cost of preparing and filing a utility application. Then within one year, the inventor must also pay to have a utility application prepared and filed based on the provisional application. This can result in increasing total patent costs at least 1/3 to 2/3 over only filing a non-provisional application in the first place. However, this additional year gives an inventor an lower cost option to be patent pending for a year thus allowing the inventor to gauge market interest on their invention or to seek investors.


Plant Patents

What is a plant patent?

  • A plant patent is a grant from the government of the right to exclude others from making, selling or using the claimed asexually reproduced plant for a period of twenty (20) years from the filing date of the application.
  • There are no maintenance fees for plant patents.

Resources for Inventors

Inventor Resources

Would you like to be listed in one of these categories? Contact us!

NOTE: The below list contains resources available to Idaho inventors that Shaver & Swanson, LLP is aware of. The services on this list have not been confirmed, endorsed, or guaranteed by Shaver & Swanson, LLP, and the list is merely provided as a courtesy to these resources and Idaho inventors.

Business Development

  • Idaho Small Business Development Center assists people in getting their technology-related business up and running. Contact Rick Ritter at (208) 426-6613.
  • WayPoint Management Group, LLC – According to WayPoint, “Once the product development and patent stages have been completed WayPoint can provide your management team with the strategic and operational support required to create a high performance organization capable of tracking a high growth curve and capturing each product’s full profit potential.” Randy M. Kyrias (208) 841-7080 E-Mail:

Graphic Artists/Designers & Computer Aided Drafting

  • Richard L. Dierks — computer aided design and drafting; solid modeling. E-mail: Richard L. Dierks,
    (208) 378-9635.
  • Gizmos & Gadgets CAD Service–solid modeling and 3D drawings. E-mail: Michael Jones, (208) 344-0435.
  • ProtoQuill — patent graphic compilation. E-mail: Val Johnson
  • Stephanie Inman — graphic design + hand lettering. website
  • Leo Geis ( – Technical Photography: Forensically defensible and extreme grade product imaging. Macrophotography (small objects and details). Time-lapse photography and macrophotography. 360-degree photography and macrophotography. Hyperspectrual (infrared, ultraviolet) imaging. Thermography. (208) 344-7410

Engineering Consulting

  • Tech Help – Idaho Manufacturing Specialists, Provide assistance in design, manufacturing, and new product development. (208) 426-3767. email
  • Rapid Pro – Product Design and Manufacturing, Provide engineering, design, prototyping, and manufacturing assistance. Based in Longmont, Colorado. Free consultation. Phone number: (970) 535-0550.
  • Inventure Engineering, LLC, Tony Senn, PE, Mechanical Engineering, design and prototyping. 3D solid modeling, CNC and manual machining, welding and fabrication. (208) 863-6033,
  • AirTrack Electronics Corp. — Provides services in product development, including design, prototyping, CAD/CAM, reverse engineering, and complete turn-key service, as well as product and process enhancement, including troubleshooting, cost reduction, design for manufacturability, and statistical experimental design. Contact: Cliff Seusy, P.E. PH. (208) 375-4004, Fax (208) 375-5445 or e-mail:
  • Leo Geis – Software Development for Persuasive Applications. Public relations/education campaigns. Litigation presentations & exhibits. Critical instruction (e.g. medical compliance). Mobile device instruction, instructional games, and testing. Mobile device time and/or geographic position-sensitive
    applications. (208) 344-7410
  • Benchmark Research & Safety, Inc. ( is a human factors and ergonomics consulting firm that specializes in providing consulting and professional services in the following areas: product safety; warnings development & evaluation (on-product & manuals); research (design, ethnographic, perceptual); and usability & user-centered design. Contact Eric Shaver at 208-407-2908 or via email.

Marketing Resources

    • CuriousMedia — Provides:
        1. Corporate Identity development
        2. Marketing Strategy
        3. Advertising
        4. Concept development
        1. Design for print, web, CD and DVD
        2. Illustration
        3. Animation
        4. Video editing
        5. CD and DVD development
        6. Desktop applications
        7. Web applications
        8. Photography
        9. Packaging design
        10. Print management
        11. Writing: copy
    • Guy Rome and Associates, Inc.–marketing (television, radio and print), design (outdoor, direct mail/marketing, and point-of-sale), media (packaging, corporate identity, and collateral material), and other services (sales promotions, public relations, and strategic planning). (208) 345-4143.
    • Catapult3–displays, fixtures and banners. (208) 384-5220.
  • Applied Marketing Group –provides consulting to businesses and individuals for marketing purposes. (208) 362-6611

Prototypes, Machining & Plastics

  • Quintex Corporation — Plastic molding services. Contact: Michael Dawson. (208) 442-1999.
  • RPM Machine, Inc.–CNC milling & turning, prototype & production, molds & EDM, CAD-CAM system, semiconductor equipment, and circuit board tooling. (208) 887-7770.
  • Adaptive Technologies–a plastic injection molder, who designs and manufactures plastic parts, models, assembly tooling and molds. They can be a turnkey source for entire assemblies or supply raw parts. They offer project management resources as well as sourcing for other types of manufacture. Contact: Bruce LaVassar. PH. (208) 467-1000, Fax (208) 467-1039 or e-mail:
  • RMI-I — Plastic fabrication and finishing. (208) 377-3686
  • AirTrack Electronics Corp. — Provides services in product development, including design, prototyping, CAD/CAM, reverse engineering, and complete turn-key service, as well as product and process enhancement, including troubleshooting, cost reduction, design for manufacturability, and statistical experimenta design. Contact: Cliff Seusy, P.E. PH. (208) 375-4004, Fax (208) 375-5445 or e-mail:


  • Randy M. Kyrias. (208) 841-7080
  • Rick Ritter, Technology Services Consultant, Idaho Small Business Development Center. (208) 426-6613,

Local Organizations

  • Idaho Technology Council – “The Idaho Technology Council exists to connect, inform and promote the technology companies in Idaho and is dedicated to foster the growth of technology companies in the state, primarily in the areas of information technology, agriscience, and energy.  The ITC provides a valuable forum for industry, research, educators, investors, and government throughout the state.  The ITC advocates for creating a strong, innovative technology ecosystem and a high quality, high paid workforce.”

Design patents

What is a design patent?

  • A design patent is a grant from the government of the right to exclude others from making, selling or using the claimed ornamental design features of an invention for a period of fourteen (14) years.
  • There are no maintenance fees for design patents.

Utility Patents

What is a utility patent?

  • A utility patent is a grant from the government of the right to exclude others from making, selling, or using the claimed group of functional features of an invention for a period of 20 years from the date the patent application was filed.  Utility patents generally protect the way something works as opposed to the ornamental way an object looks.
  • The owner of a utility patent must pay maintenance fees throughout the life of the utility patent in order to keep the patent enforceable. The first maintenance fee must be paid after the third year and prior to the expiration of the 3-1/2 year period from the issuance of the patent. The second fee must be paid after the seventh year and prior to the expiration of the 7-1/2 year period from the issuance of the patent. The third fee must be paid after the eleventh year and prior to the 11-1/2 year period from the issuance of the patent. There is a six-month grace period for each of these payments, with a penalty imposed, of course.

Common Law Copyrights

Common Law copyright vs registered copyright  Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting.  To keep someone from copying your creation, you just have to file for a copyright ($45) and sue them for copyright infringement, assuming a cease and desist letter doesn’t work.  If you can prove you created it first, and they copied it, you can get an injunction and make them stop copying it.  That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright under these facts if it is a very important creation, like your company’s flagship product.

However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made.  Each loading of a web page is one act of copying.  What that possible outcome adds up to is a huge hammer held over the head of the copier.  If he loses he will lose big time, and you will be made whole.  He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation ever again.  That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.