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FAQ

What is a patent?

A patent issued by the United States Patent and Trademark Office (USPTO) grants the creator of an invention property rights to that invention. Patents are typically granted 20-year terms, and U.S. patent grants are not effective outside of the U.S. As defined by the office’s official website, a patent grants “the right to exclude others from making, using, offering for sale, selling or importing the invention.”

What types of patents are there?

In the U.S., there are three types of patents:

  • Utility patents: Protect the useful aspects of machines, methods or processes, articles of manufacture (ex. pencils or resistors) and compositions of matter (ex. chemical compounds and materials). They claim the invention in words, and typically have a maximum life of 20 years from the date of filing.
  • Design patents: Protect the ornamental or nonfunctional aspects (ex. appearance instead of function) of the same inventions that can also be protected by utility patents. They claim the invention in drawings showing the claimed design; are generally less expensive than utility patents and last up to 14 years.
  • Plant patents: Granted to those who discovers or invents and reproduces a distinct, new variety of plant.

Utility patents and design patents are the most common types of patents. There are critical timing requirements relating to acts of public disclosure or use of your invention and filing your patent application, so until you understand these requirements, you should keep your invention strictly confidential.

What can be patented?

Patents are granted to new processes, machines, manufactures or compositions of matter, or any new and useful improvements on such processes, machines, manufactures or compositions of matter. Patent law outlines that the invention must be considered “useful,” or has a useful purpose and operativeness. A patent cannot be granted to a mere idea; rather, a full description of the actual product must exist in order for the inventor to seek a patent.

What is a provisional patent application?

In practice, provisional applications are often used as an alternative to filing a complete and fully-drafted patent application, usually to either decrease costs or meet a deadline. While these applications may adequately describe one embodiment of the invention, they will, as a rule, not include all of the information a competent patent drafter would understand to be necessary to support meaningful claims. The inventor runs the risk of a certain lack of protection if the invention is disclosed to the public before the application is complete. A provisional patent application also becomes a part of the record of that patent, so if it isn’t drafted well there may be trouble in litigation and valuation of the patent later.

What is a trademark?

Trademarks have two basic aspects. First, they create a protection for the public against confusion in the marketplace from similar marks. Second, they provide protection of famous marks from loss of distinction and reputation, called “anti-dilution.” A trademark specifies the origin of a product and distinguishes that product from others like it. Trademarks can be names, symbols, words or devices. They cannot prevent others from creating the same product or selling the same product or service from under a different mark, but they can prevent others from using a similar mark.

Do I have to register my trademark to be able to claim rights to use it?

In short, it isn’t necessary to register a trademark to have trademark rights under the law. However, registering your trademark does provide you with a number of advantages. Trademarks may be registered both federally and in each state. Registering your trademark federally will allow you to give public notice of your ownership of the mark, give you the ability to bring legal action in federal court concerning the mark, have you listed in the USPTO’s online databases and more.

When can I use the “TM” and “®” symbols?

If you wish to use the “TM” symbol for your mark, you do not need to register it in order to use those symbols. While the “TM” symbol lets people know that you are claiming rights for the mark, common law doesn’t necessarily grant you all the rights and benefits of registering your mark federally. The “®” symbol may only be used after a mark is officially registered with the USPTO, and only in connection with the goods or services listed in the federal trademark registration.

What is a copyright?

Copyrights are granted to creators of certain intellectual works, such as literature, photography, music, art, screenplays, computer software and other forms of expression, published or unpublished. In general, the copyright owner is granted the exclusive right to distribute, perform, display, reproduce or prepare derivative works. Though copyright doesn’t protect things like facts, ideas or methods of operation, the particular way in which these things are expressed may be protected.

When is a copyright created?

Generally, a copyright is created automatically when the work is completed. This can mean when a painting or song is finished, or when a photograph is taken. However, you cannot enforce your rights without registering the work with the USPTO. If you register sufficiently early, you may be able to obtain “statutory damages,” or a minimum damage award without proof if your work has been infringed upon. Since copyright registration is easily done on one’s own, an attorney usually only assists clients in copyright enforcement matters.

How are intellectual property rights enforced?

In general, intellectual property rights give the owner the right to exclude or stop others from taking action or infringing upon those rights by unauthorized use, which may include making, using or selling your invention, using your trademark or copying your copyrighted work without permission. When this happens, the property owner can choose to authorize the actions taken or pursue a lawsuit against the offender. Lawsuits don’t necessarily have to be filed when infringement happens – quite often disputes are settled before trial. But in the case litigation is necessary, the attorneys of Birdwell & Janke, LLP are prepared to take your case to court.


For all of your patent, copyright, trademark and intellectual property law questions, call the knowledgeable attorneys of Birdwell & Janke, LLP. We help clients throughout Portland, Los Angeles and the entire U.S. register and enforce their intellectual property rights. Call (503) 224-2180 to get started today.