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Patents, Trademarks, Copyrights, Trade Secrets Protect Your Invention!
Patent numbers are issued consecutively, starting with number one. Patent number one was issued to Samuel Hopkins on July 31, 1790. It took 75 years for the United States Patent and Trademark Office (USPTO) to issue patent number 1,000,000. Patent number 7,000,000 was issued on February 14, 2006. It took only seven years for the USPTO to move from issuing patent number 6,000,000 to 7,000,000.
What it means? Quite simply, there is more creativity now than at any time in history. The old view that “there is nothing new” is completely wrong. Never before have there been so many people and entities creating new, unique products, technology and services, and so driven to commercialize these inventions. More patents and entrepreneurs trying to market their products indicate that there is more competition for successful marketing.
It is necessary for entrepreneurs to protect their inventions. This is a form of insurance. Attempting to market an invention without covering the work with patent, trademark, copyright or trade secret protection indicates a frivolous approach that will not succeed. Investors, licensees and investors require the protection that these intellectual property products provide. Even if an entrepreneur wants to market the invention independently, protection is necessary to fend off competition.
In the early 20th century, an Atlanta pharmacist created a formula for a syrup that he sold at his pharmacy’s soda fountain. John Pemberton mixed the syrup with sparkling water and sold the concoction as a wellness drink to treat pain. Mr. Pemberton created Coca-Cola. He never expected that Coca-Cola would become an international comfort product, a soft drink. The smartest thing John Pemberton ever did, besides inventing Coca-Cola, was to treat the secret syrup formula as a trade secret. To this day, The Coca-Cola Bottling Company zealously protects the ingredients and chemistry involved in producing the base syrup that is the essence of classic Coca-Cola.
Big Boy Restaurants protects the recipe for the tartar sauce that goes on their sandwiches, which many customers buy by the bottle and take home. McDonalds steadfastly protects the process their restaurants use to cut, cook and season their fries. William Wrigley was equally manic in keeping secret his technique for delivering strong-tasting, long-lasting chewing gum.
Trade secrets usually cannot secure patent protection. The novelty of a trade secret is in the blending, chemistry, or chronology used to deliver the finished product. If you have such a recipe, you’ll want to keep this knowledge very close, as it can become very dear. If the public knew the formula for Coca-Cola, it is quite possible that there would be many consumers who would mix their own drinks at home. Coca-Cola wouldn’t like that!
If your product has the potential and need to become a trade secret, you’ll want to follow a few very basic steps. First, write down every event related to the development of the formula. Keep a diary with data, dates and details of your work. As you complete your development work, record all steps essential to deliver the finished product that you wish to keep confidential in a recipe or summary document. Then store in a very safe place (a safe or a safe) all the work product and the recipe or formula.
A trade secret gains incredible asset value when your product becomes a market success. Selling a business built around a fully protected trade secret increases the value of the company exponentially. Coca-Cola, Betty Crocker, Duncan Hines, Oil of Olay, Schlitz, Dom Perignon, Ben and Jerry’s, and Estee Lauder’s Youth Dew are just a few examples of famous brands built around a trade secret.
A trademark is important in developing brand awareness for a product. Use a patent attorney when approaching the highly specialized area of seeking trademark protection. I have never seen an entrepreneur successfully navigate the very complex work of the USPTO. I have seen many attempts to solve this process, all of which have resulted in complete failure.
Trademark content may include a custom, identifying icon, a stylized brand name, and a brand statement. Nike uses the famous slash (icon) of the company name (a recognizable stylized font) and the “Just Do It!” (brand statement). Include all elements that the public will recognize in your trademark application.
Take a look at the local, regional, national and international companies and brands you see every day. Pat’s Cheese Steaks in Philadelphia is a local business that has gained a lot of fame and brand recognition and protects its brand with a trademark. It’s a destination for Philly visitors. Chanel, the French haute couture brand, is internationally respected, and the classic “C” that adorns every unit of Chanel products is one of the most recognized brand icons in the world. Indeed Nolen, a national pest control service, stamps mouse ears that can be seen on every piece of sales collateral, advertising and service vehicle the Company uses.
Possession of a trademark obligates the police to protect the assigned mark. Inclusion (TM) on each product unit is essential. Again, consult an attorney. Stamps can be inadvertently emptied and lost.
Copyright is used to protect intellectual property. Film content, poetry, music, books and plays are protected by copyright. We have worked with clients on a large number of video and board games. We always copyright the rules and/or features of the game.
Recently, Dan Brown, author of the wildly successful book The Da Vinci Code, was found suitable for plagiarism by British authors of a book about the quest for the Holy Grail. The quest for the Holy Grail is central to the plot of The Da Vinci Code. There are full shelves of libraries devoted to the search for the mystical Holy Grail. And yet, during the preparation of the film “The Da Vinci Code”, court proceedings were initiated regarding this intellectual property. Brown and his publisher vigorously defended their copyright rights. They received a full vindication from the court.
Producers of intellectual content (film studios, record companies, book publishers) are very reluctant to accept unsolicited submissions for review. The reason is the “Da Vinci Code” saga. Legal proceedings are widespread in the field of intellectual property. We all remember things we saw, heard or experienced from the distant but dim past. Regurgitating a variation of that experience can find its way onto the written page. Voila, is this material plagiarized?
Mattel and Hasbro will not review ANY outside toy submissions. Isn’t it a coincidence that Hasbro or Mattel haven’t released toys in years? This is one of the unfortunate byproducts of a litigious society, the limitation of necessary innovation. Protect your intellectual property with copyright.
I recommend that my clients, before spending a dime on a patent attorney, do a cursory search on the USPTO.Gov website by listing all the obvious keywords applicable to their invention. If several patented products appear, and they are on point with their idea, the subject may not be a candidate for filing. If the field seems open and clear, then I advise you to hire a patent attorney to do a professional, thorough search. A thorough search will confirm the potential for successful patent protection.
Patents are the preferred style of protection for most inventors and entrepreneurs. Patents (utility) are very powerful agents of defense against predators, thieves and con artists. Not to be rude, but, again, use the services of a patent attorney. I’m always amazed and amused by how many people think they can successfully write, provide very specific 3-D CAD art, file, handle USPTO objections, and move a patent through the maze of federal government bureaucracy. Go Figures! They waste time and money, and usually negate any chance of a refiled patent successfully obtaining a patent number.
A provisional patent application is basically a letter that is placed on file with the USPTO. A provisional filing advises the USPTO of the description of the product you are trying to develop. The letter has a one-year life cycle and must be extended by a formal patent application (utility or design) or the product vacates forever.
We use the Provisional Patent as a completely legal way to declare that a product is in the early stages of development and is patent pending. This application is also very inexpensive compared to a design or utility patent. A provisional patent application also allows an entrepreneur a year to test and assess market response to the invention. If the response is positive, then this reinforces the need to continue directing funds to further develop the capability.
A design patent simply covers the artistic features listed in the application. This is the weakest form of patent protection. A competitor need only change a design element, cosmetic feature, or add a craft variation to trump a design patent. However, for products that have real commercial potential but cannot overcome the product’s prior, existing art to obtain a utility patent, a design patent offers one potentially important advantage: the option to keep the product in current patent pending status.
We did that on several occasions. A simple amendment to the initial filing means that a bureaucrat at the USPTO must find the file, retrieve it, insert the amended filing details, and resubmit the filing. As a result, the application goes to the end of the queue and we get months more patent pending protection.
Why go through all this? When a product is in patent pending mode, it has superior protection. When a patent number is issued, the clock starts ticking on the effective life of the protection and details of the novelty of the patented product become public knowledge. Your product has been removed. It can be incredibly easy for a less than scrupulous artist to come up with the unique features and benefits of your inventions.
By keeping the product in an uncertain patent-pending state, the features are hidden from any public awareness. This often leads to a first-to-market advantage, and the competition is only aware that there is a patent pending. The additional time the product gets to build and expand sales and begin the branding process is exponentially more valuable than the legal fees required to continue adding rudimentary additions to the design documentation. You want to be first in the market and have as much time as possible to be independent in the market.
A utility patent is extremely valuable, both as a protective shield against competition and as a business asset. An invention that receives a utility patent number from the USPTO is potentially of interest to licensees, partners, investors, and venture capital. Most of the patented products (Utility), however, never reach the market. We often see inventions that are new, and therefore patented, but not commercial, necessary or useful. We all know a mad scientist or two, with endless designs, inventions and patents, none of which will ever be a market success.
A utility patent protects new features and benefits that the application describes in detail. A patent attorney will explain the unique aspects of your invention. They will also mention other patents in the vicinity of your space, but will closely note the differences inherent in your invention. In addition, a lot of effort will go into creating a 3-D computer-aided design that shows your product from every possible angle and graphically displays the uniqueness of your product.
Utility patent applications rarely make it through the USPTO unchallenged. A competent patent attorney often anticipates a weakness in a filing and has a variety of objections ready to address the examiner’s concerns and questions. This redirects the file back into the bureaucracy at the USPTO. I tell my clients that they can expect up to an 18-month wait before they receive notice of the USPTO’s decision. However, on several complex submissions, I have seen the process take up to six years.
Trust me, it is worth the work, wait, and investment if a successful USPTO outcome is achieved. A utility patent conveys gravity. The invention has withstood the strictest scrutiny and received the most favorable verdict: this invention has significance.
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