What does it mean to protect intellectual property?
Now that we know what intellectual property is, let’s talk about how to protect intellectual property. The word “protect” is curious in the context of IP. What do we mean by intellectual property protection? If you think of IP as an asset, then it makes sense.
What would it mean, for example, to protect your personal property? Perhaps we might think of securing our belongings – our tangible assets – to protect them from being stolen or used without our permission. Along those lines, the concept of protecting your IP would have a similar meaning of stopping others from taking or using your intangible assets.
So let’s talk about how to protect intangible assets. We’ll cover some basics on timing and costs for the most common applications for intellectual property protection.
How to protect your products with trademarks
Trademarks are relatively straightforward. To build protectable trademark rights, you must generally begin using a mark to sell goods or services, or file a US trademark application based on a foreign registration for the same mark.
So you need to choose a trademark and identify the goods or services to be sold under the mark. Before investing in production and packaging, consider a trademark search.
You don’t have to wait until goods or services have been sold in order to file an Intent-To-Use trademark application. Filing an ITU provides you with several advantages, including an earlier filing date that would postpone the examination of any subsequently filed applications for similar marks by third parties. If your ITU application matures into a registration, your ITU filing date will be treated as if you began using the mark on that date.
If you’ve already begun selling goods or services under a mark, file your trademark application promptly. Why let someone else beat you to the Trademark Office and delay the examination of your application?
Consider whether you want to apply for a word mark or design mark.
Can you file a trademark application after years of using your mark?
Yes, there is no time limit as to when you must file a trademark application. Take inventory of your product names and logos that remain unregistered. Prioritize that list and start filing trademark applications.
How to protect your innovation with patents
Unlike trademarks, patents do not require any use by the owner in order to be protectable. Patents also expire. For a limited duration, a patent owner has the power to exclude others from copying or using the patented invention.
But, how do you convert an idea in your mind into an actual patent? If you’ve ever felt like someone “stole your idea,” is it possible that they simply patented an invention before you did? This brings us to an important principle about patents. If you do not apply, you will not get any patent rights.
This principle also applies to provisional patent applications that do not get converted to nonprovisional applications. If you do not file a timely nonprovisional, your provisional will expire and leave you with no patent rights.
If you plan to file a utility patent application, a patentability search may be worthwhile if your invention is simpler. For example, inventions that are primarily mechanical or structural may warrant a patentability search. Novelty searches might not be as useful for software apps due to the high probability of obviousness and eligibility rejections which generally are not covered in such patent searches.
You can try searching for yourself. However, the Patent Office imposes a duty of disclosure on patent applicants. So, you’ll eventually need to disclose the prior art references found in your search when you file a patent application.
Can you file a patent application after years of sales or public disclosure?
No, patents have a strict deadline. In the US, you have only one year from the earliest date of public disclosure to file a US patent application.
So it would be ideal to file a patent application before any public disclosure for at least two reasons. First, you reserve the right to apply for foreign patents. Second, you may win the first-to-file race and beat others to the USPTO.
If it’s too late to patent your original product, think about any improvements or modifications that have not yet been shown to the public. You may be able to file a patent application for your new and improved version, but prepare to argue with the examiner on how your newer concept is nonobvious over your original concept.
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