Patents, Trademarks, Industrial Designs and Copyrights
If your idea involves a physical product that you believe is unique you will probably be considering how to protect it from copying and competitors. Investors will ask you how you propose to protect your Intellectual Property (IP) and the answer you give may well impact on whether or not they are prepared to invest.
There are two schools of thought regarding protection of intellectual property. If you have not already lodged patent applications and have a business that operates in the technology space where several major companies have interests you should be aware that large amounts of money and resources are applied by these companies to review emerging ideas and products with a view to protecting their own interests. In some cases, this has resulted in entrepreneurs seeing their ideas and creations challenged with the ultimate goal of delaying their market entry.
First Mover strategy
One school of thought is that where companies have not embarked on the patent process is that the best line of defence is to create the product bring it to market and be the first mover in the field.
The alternate strategy is for entrepreneurs to file for the relevant protection available to them. Entrepreneurs should seek Independence legal advice as to be most appropriate course of action as it can be a lengthy and expensive process and have implications on when you are able to sell your product on the open market.
Obtaining intellectual property protection, such as patents, can minimise competition and act as a defensive mechanism against infringement claims from others. Intellectual property also can attract or solidify funding and partnerships.
A Poor Man’s Patent involves mailing a description of your invention to yourself in order to authenticate a date of invention for you by the Post Office. The proof is in the sealed envelope as well as the date of postage is evident on the sealed envelope.
Trademarking your product or applying for a Design Patent (Industrial Design) and Copyright can also be useful. The following article looks at the differences between these options. . In formulating an intellectual property strategy for your startup, consider the following.
The first patent was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate). The earliest law required that a working model of each invention be submitted with the application.
According to The Guinness Book of World Records Shunpei Yamazaki as having more patents than any other person. He has been granted 2,591 United States utility patents and has 9,700 worldwide patents, which is cumulative of more than 40 years of inventions.
Patent applications have increased exponentially with no signs of slowing down.
(Source: World Intellectual Property Organisation 2015)
How intense is the Patent lodgement process?
The author of this article worked with John Rich on the application for a US Patent. As an example of the intensity and knowledge required to lodge a patent application in the USA the following is the summary page describing the differences and why a Patent should be issued. The product was 10 years in the making including five years of communications with the patent office before finally being granted a US Patent.
|United States Patent||10,206,382|
|Rich||February 19, 2019|
Hand cast fishing apparatus comprising: a handpiece having an internal line passage connected to an arm support, the arm support adapted to abut a section of the ulnar side and to capture a portion of a user’s forearm; a line guide formed by the outer end of the internal line passage and being at or adjacent the outer end of the handpiece through which fishing line may pass for casting; and a support assembly depending from the arm support having a left and/or right hand releasable reel mounting each of which can operatively secure and position a fishing reel for feeding fishing line from the fishing reel through the line guide in an underslung position beneath the support assembly with its winding mechanism operable by a user’s opposite hand, wherein the left and/or right hand releasable reel mounting is fastened to a mount.
2. Hand cast fishing apparatus as claimed in claim 1, wherein the line guide positions a cast fishing line across the extended forefinger of a user’s hand when operatively grasping the handpiece.
3. Hand cast fishing apparatus as claimed in claim 1, wherein the arm support is formed so as to extend from the handpiece along the ulnar side of the forearm of a user operatively grasping the handpiece.
4. Hand cast fishing apparatus as claimed in claim 1, wherein the arm support includes a saddle to capture the portion of a user’s forearm.
5. Hand cast fishing apparatus as claimed in claim 4, wherein the relative position of the saddle to the handpiece is reversibly adjustable.
6. Hand cast fishing apparatus as claimed in claim 1, wherein the handpiece position relative to the arm support is selectively adjustable.
7. Hand cast fishing apparatus as claimed in claim 6, further including reversible securing means for the handpiece to the arm support to displace the handpiece to the left- or right-hand side of the arm support.
8. Hand cast fishing apparatus as claimed in claim 7, wherein the securing means includes a pair of opposed rails on the handpiece for selective captive engagement with a pair of mounting slots on the arm support.
9. Hand cast fishing apparatus as claimed in claim 7, wherein the securing means includes a trunnion mounting extending laterally at or near the end of the arm support whereby the handpiece may be selectively supported at either end of the trunnion mounting.
10. Hand cast fishing apparatus as claimed in claim 1, further including a fishing reel attached to one of the reel mountings.
11. Hand cast fishing apparatus as claimed in claim 1, wherein the mount is a cylindrical mount.
12. Hand cast fishing apparatus as claimed in claim 11, wherein the cylindrical mount is attached to the arm support such that the left and/or right-hand releasable reel mounting assembly is configured to be rotated about the axis of the cylindrical mount.
13. Hand cast fishing apparatus as claimed in claim 12, wherein the left and/or right hand releasable reel mounting assembly is configured to be rotated about the axis of the cylindrical mount to set the fishing reel at an angle whereby its feed axis is substantially in line with the internal line passage.
14. Hand cast fishing apparatus as claimed in claim 1, wherein the left and/or right hand releasable reel mounting assembly includes opposed treaded end mounts.
15. A hand cast fishing apparatus comprising: a handpiece having an internal line passage connected to an arm support, the arm support configured to be secured to the ulnar side of a user’s forearm; a line guide formed by the outer end of the internal line passage and being at or adjacent the outer end of the handpiece through which fishing line may pass for casting; a pair of mounts attached to opposing sides of the arm support; and, a support assembly depending from the arm support having a reel mounting assembly configured to secure and position a fishing reel for feeding fishing line from the fishing reel through the line guide in an underslung position beneath the support assembly with its winding mechanism operable by a user’s opposite hand, wherein the reel mounting assembly is configured to be releasably fastened to either mount of the pair of mounts for left or right hand use.
16. The hand cast fishing apparatus of claim 15, wherein the reel mounting assembly is configured to be rotated about either mount of the pair of mounts.”
Years of investigation into existing technology is required to be able to recognise and construct an argument that successfully supports your invention.
The earliest trademark legislation was the Bakers’ Marking Law, obliging every baker to put his mark on the bread he baked, enacted by the British Parliament in 1266.
A design mark with an eagle and a ribbon and the words “Economical, Brilliant” was the first registered trademark, filed by the Averill Chemical Paint Company on August 30, 1870 under the Trademark Act of 1870.
(Source: US Patent and Trademark Office)
Advantages of filing a Trademark
- It gives you the right to use the registered trademark symbol.
- It grants the right to file a trademark infringement lawsuit in federal court and to obtain monetary damages.
- it acts as a bar to the registration of another confusingly similar mark.
- You can request to have the customs service block the importation of goods bearing an infringing mark.
- It may serve as the basis for an international trademark application.
Disadvantages of filing a Trademark
- If you have not done a thorough search the trademark may already be taken which could lead to a legal dispute.
- Filing may lead to an objection as many trademark owners use watching services to review new applications.
- The lifespan of a trademark may be not be long enough to warrant the effort if you only intend to use it for a short period.
- The trademark may be not be distinctive enough.
An industrial design (referred to as a design patent in the United States) is a form of intellectual property that protects visual features such as shape, configuration, pattern or ornament, or any combination of these features, applied to a finished article.
Industrial Design protection is a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design, to the right holder. In order to get the statutory protection of Industrial Design, the Design has to be registered before the Design registry. Industrial design rights are granted for a limited period. The duration of the protection of industrial designs varies from country to country, but it amounts at least to 10 years. In many countries, the total duration of protection is divided into successive renewable periods.
Industrial design rights are usually enforced in a court, generally on the initiative of the owner of the rights, as provided for by the applicable law. The remedies and penalties vary from country to country and could be civil (injunctions to desist from an infringement, payment of damages, etc.), criminal or administrative.
(Source: World Intellectual Property Organisation 2016)
Advantages of applying for an Industrial Design
- In principle, the owner of a registered industrial design or of a design patent has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
- Industrial designs are applied to a wide variety of products of industry and handicraft items: from packages and containers to furnishing and household goods, from lighting equipment to jewellery, and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols, graphical user interfaces (GUI), and logos.
- In most countries, an industrial design needs to be registered in order to be protected under industrial design law as a “registered design”. In some countries, industrial designs are protected under patent law as “design patents ”.
- Industrial design laws in some countries grant – without registration – time- and scope limited protection to so-called “unregistered industrial designs”.
- Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law.
- Design patents applications are examined quicker than utility patent applications. Instead of waiting 2 or 3 years for a utility patent application to be filed, design patents applications may be examined and allowed within one year. Hence, you can mark your product patented quicker.
Disadvantages of applying for an Industrial Design
- An industrial design right protects only the appearance or aesthetic features of a product, whereas a patent protects an invention that offers a new technical solution to a problem. In principle, an industrial design right does not protect the technical or functional features of a product. Such features could, however, potentially be protected by a patent.
- Industrial designs only provide a narrow scope of patent protection. It only protects what is shown in the drawings. If a competitor copies your product but makes it look different then there is no design patent infringement.
A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In the USA, The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. A work must be original, creative and fixed in a tangible medium and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
Copyright provides the right to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted works.
Advantages of registering Copyright
- Registering your copyright, a public record confirming you have claimed copyright ownership of that particular work. This lets the public know the work is protected by copyright and also informs those who would like to use the copyrighted work whom they should contact for permission.
- If the copyright is registered before the work is published, or within five years after publication, the registration is accepted as proof in court that you are the original creator of the work and are entitled to copyright protection.
- The use of a copyright notice — a letter “c” inside a circle along with the copyright holder’s name and date the copyright started — is no longer legally required, but it enhances the effect of copyright registration by putting all viewers on notice that the work is protected by copyright law.
- Although criminal prosecution may result from large-scale copyright infringement actions, enforcement of most copyrights against infringement is accomplished through civil lawsuits filed by the copyright holder.
Disadvantages of registering Copyright
- The primary disadvantage to copyright registration is simply the time and modest costs involved in the process of filing the registration.
Patents, Trademarks, Industrial Designs and Copyrights are all valid strategies in the process of protecting your IP and can be used in combination with each other.
Whatever strategy you select it is always recommended that you seek professional advice before making a decision as the process can be lengthy, complicated and costly and often requires specific legal knowledge that patent attorneys are trained to provide.