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Intellectual Property

Patent Law: an overview

Patents grant an inventor the right to exclude others from producing or using the inventor's discovery or invention for a limited period of time. U.S. patent laws were enacted by Congress under its Constitutional grant of authority to protect the discoveries of inventors. See U.S. Constitution, Article I, Section 8. The main body of law concerning patents is found in Title 35 of the United States Code. In order to be patented an invention must be novel, useful, and not of an obvious nature. See 101 - 103 of Title 35. Such "utility" patents are issued for four general types of inventions/discoveries: machines, human made products, compositions of matter, and processing methods. See 101 of Title 35. Changing technology has led to an ever expanding understanding of what constitutes a human made product. Specific additions to the Patent Act provide, in addition, for design and plant patents.

Prior to a recent amendment prompted by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) accompanying the Uruguay Round GATT, patents were normally issued for a non-renewable period of seventeen years, measured from the date of issuance. See 154 of Title 35. Under the amended provision (which took effect June 8, 1995) the term will be twenty years measured from the date of application.

Patent infringement cases arise under Federal patent law over which the Federal courts have exclusive jurisdiction. See 1338(a) of Title 28 of The United States Code.

The Federal agency charged with administering patent laws is the Patent and Trademark Office. See 1-26 of Title 35. Its regulations, pertaining to Patents, are found in Parts 2 - 6 of Title 37 of the Code of Federal Regulations. Each patent application for an alleged new invention is reviewed by a examiner to determine if it is entitled to a patent. See 1.104 of Part 1 of Title 37 (C.F.R.). While historically a model was required as part of a patent application, in most cases today, only a detailed specification is necessary. See 112 - 114 of Title 35.

If an application is rejected, the decision may be appealed to the Patents Office's Board of Appeals, with further or alternative review available from the United States Court of Appeals for the Federal Circuit, or in the United States District Court for the District of Columbia. See 134, 141, & 145 of Title 35.

In 1975 the Patent Cooperation Treaty was incorporated into Title 35. See 351 - 376 of Title 35.

Trademark Law: an overview

Trademarks are generally distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products. Trademark status may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification that is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller. The owner of a trademark has exclusive right to use it on the product it was intended to identify and often on related products. Service-marks receive the same legal protection as trademarks but are meant to distinguish services rather than products.

In the United States trademarks may be protected by both Federal statute under the Lanham Act, 15 U.S.C. 1051 - 1127, and states' statutory and/or common laws. Congress enacted the Lanham Act under its Constitutional grant of authority to regulate interstate and foreign commerce. See U.S. Constitution, Article 1, Section 8, Clause 3. A trademark registered under the Lanham Act has nationwide protection. See 1115 of the Act.

Under the Lanham Act, a seller applies to register a trademark with the Patent and Trademark Office. The mark can already be in use or be one that will be used in the future. See 1051 of the act. The Office's regulations pertaining to trademarks are found in Parts 1 - 7 of Title 37 of the Code of Federal Regulations. If the trademark is initially, approved by an examiner, it is published in the Official Gazette of the Trademark Office to notify other parties of the pending approval so that it may be opposed. See 1062 - 1063 of the Act. An appeals process is available for rejected applications. See 1070 - 1071 of the Act.

Under state common law, trademarks are protected as part of the law of unfair competition. Registration is not required. See Unfair Competition. States' statutory provisions on trademarks differ but most have adopted a version of the Model Trademark Bill (MTB) or the Uniform Deceptive Trade Practices Act (UDTPA). The MTB provides for registration of trademarks while the UDTPA does not.

Further protection of trademarks is provided by the Tariff Act of 1930. See 19 U.S.C. 1526.


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