Sunday, June 7, 2009

Patent And-Or Trademark That New Product?

Your company has developed a really nifty new product. Should you file for a patent, and should you trademark the product's name? Like so many other things in life, business, marriage and sports, it depends.

Patent a New Product? First of all, you cannot actually "patent" a product or service. You can only patent the innovation that went into creating that product or service. Applying for and receiving a patent has several benefits.

1. Protection and Exclusivity: First and foremost, getting a patent for your invention prevents competitors from using it to create identical or similar products. For example, when Post-it® notes came out, 3M had patented the technology behind them, and that gave 3M a valuable monopoly for many years. Understand, however, that the US Patent Office issues patents; they do not enforce them. So if a company infringes on your patent, you will have to defend your patent through civil litigation.
2. Additional Revenue: You can license your patent to other businesses. While it probably does not make sense to license your patent to a direct competitor, you could license it to companies in other industries and create a nice revenue stream. If the product that uses the invention is not producing the desired sales or profits for your business, you could then license the patent - or even sell the patent - to generate revenue from it.
3. Better Safe than Sorry: If you do NOT apply for a patent, and two or three years later you discover that a company is using your innovation to produce a product or service, you may regret not patenting the technology when you had the opportunity to do so.

Is Your Invention Patentable? It is worth a few hundred dollars to have a patent attorney or patent agent look at your innovation and determine if it is worth applying for a patent. If the patent attorney or patent agent believes your invention can be patented, he will help you through the patent application process. A patent attorney is an attorney who specializes in what's called "patent prosecution," the process of applying for and receiving a patent. A patent agent is not an attorney, but is licensed to practice before the US Patent and Trademark Office. To find a patent agent or patent attorney, use our free Patent Agent and Patent Attorney Referral Service.

Protecting Your Innovation: As soon as you have applied for a patent, you should use the term "Patent Pending" in your sales literature and description of the product. Doing so will essentially mark your turf, and it may discourage competitors from copying your product.

Trademark a New Product? Just as you cannot patent a product - you can only patent the innovation behind the product you cannot trademark a product: You can only trademark the name (or brand) of the product. If your new product has a unique name to identify it, you should definitely apply for a trademark if for no other reason than to prevent competitors from confusing customers and stealing sales from you by using the same or a similar product identification for their competing product.

If you simply call your new product the Model FHJ-604, then no trademark is really needed. If, however, you've come up with a name that is unique and memorable, (the Die Hard® battery from Sears is a good example), you should definitely protect your new and innovative product identification.

Consult with a trademark attorney, and if he believes your brand or product name can be trademarked, apply for the trademark. Once the US Patent and Trademark Office issues you a trademark, it will be a registered trademark, so you will then place a "®" after the brand.

Patent versus Trademark: While both patents and trademarks are issued by the US Patent and Trademark Office, they are really unrelated. A product's technology can be patented while the product's name is not trademarked. Or the product name can be trademarked while the product's technology is not patented. Sears filed for a trademark for "Die Hard" but there are no patents related to the battery. Despite the image created by the brand, there is nothing special, innovative or unique about a Die Hard® battery. 3M filed for a trademark for "Post-it" and also patented the technology behind the product.

If your product utilizes a unique technology, patenting your invention makes sense. If you came up with a marketable name for your new product, trademarking the name makes sense. But both issues should be considered separately.

Alexander Poltorak is a business consultant who writes about intellectual property, patent attorney issues, patent suites, product licensing, and other business and innovation-related topics. For more information on patent infringement issues visit

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