Avoiding Infringement Problems
A utility patent may be granted for one of the following types of inventions: a process, a machine, a manufacture, or a composition of matter. A utility patent allows owners to stop the unauthorized use of their inventions for up to twenty years from filing. Design patents last fourteen years from when they were issued, and protect the appearance of products.
Precisely copying a patent is not the only way that a business can infringe patent rights. Knowingly or unknowingly incorporating a patented invention or an invention sufficiently similar to a patented invention can also constitute infringement. A patent owner can enjoin (stop) your business from infringing their patent through a court order, and can sue for damages. In some situations, an injunction can be equally or more costly than potential damages, since it may mean legal fees, retooling costs, and inventory loss.
One way to discover potentially conflicting patents is to search the U.S. Patent and Trademark Office (PTO) database. Analyzing the results of a search and determining whether another patent is relevant to your invention or product can be complex and it is advisable to consult a patent attorney. Just because nothing like your business’s product is on the market doesn’t mean that it, or something too similar to it, isn’t already patented. Although searching back twenty years is all that is needed to ensure that your business isn’t infringing on a patent, it may be worth searching farther back. If an older patent exists covering all or part of the subject matter of your company’s product, it is a good indicator that the component is safe to manufacture. If your company’s product is truly novel, you may wish to consider applying for a patent.
Trademarks show the source of a product, or service. They can be words, slogans, logos, sounds, three-dimensional symbols, or even scents. They need not be registered for common-law rights to protect their holders, but federal statutory protections only apply to federally registered trademarks. Trademarks do not expire. An unregistered mark or a mark registered with a state is indicated by a “TM”, or “SM” (service mark). Federally registered marks bear the registered trademark symbol, ®.
Nothing closely resembling another business’s trademark should ever be used. An exact copy is unnecessary to infringe a trademark; only a mark that is similar enough to likely cause consumer confusion.
A trademark search should be conducted to determine if the use of a mark conflicts with other marks either in use or in existence. Specialized companies provide search services. However, an attorney should be consulted for comprehensive analysis of these results and a determination as to whether a nonobvious conflict exists.
Copyright infringement is rarely unintentional. Information, ideas, and technology (other than computer program source code) are generally not protected by copyright. Copyright infringement typically requires some degree of conscious duplication. Filing a copyright registration can help deter such duplication and is often well-justified by the nominal cost.
Thomson-West provides print and electronic products that provide further information about this process and the law concerning trademarks. See http://www.Thomson-West.com.
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