Monday, July 6, 2009

Pluses and Minuses of Filing For Patents and Trademarks

Patents give inventors the exclusive right to use something they've invented. What can be patented varies from nation to nation. For instance, business processes can be patented in the United States. In other countries, that's not always the case.

It's been said that a patent can be both a shield and a sword for inventors.

As a shield, it protects an invention from unauthorized use by others for a fixed period of time, currently 20 years from the time the patent is filed. That can be extended for effectively 21 years if a provisional patent is applied for before submission of a full patent application.

As a sword, a patent can be used as a pre-emptive weapon against competitors. An inventor may have no intention of using a patent, but it can put a kink in the development of competing products and processes by others.

In addition to giving an inventor control over an invention for a fixed period of time, patents can give an inventor peace of mind. He doesn't have to worry about someone claiming his invention as theirs, which usually happens when the invention starts making money for the inventor.

Patents also give inventors leverage in the business world.

Lenders look positively on business plans where a key component to a company's revenue stream is protected from competitive knockoffs.

Should an inventor want to license his invention to others, a patent can also be a persuasive tool for closing that deal.

Nevertheless, there's a downside to patents, too.

Patent filings are public documents. That means competitors may gain insights into an inventor's products and business strategy by looking at a patent filling.

Obtaining a patent is a lengthy process. In the two to three years it takes to get a patent, an invention may lose its cutting edge value.

The patent process is also expensive. A patent can cost anywhere from $8000 to $10,000, depending on its complexity.

Once an inventor brings his invention to market, he may want give it further protection with a trademark--especially if it has a snazzy name like the iPod.

Trademarks can be applied to a number of things--symbols, pictures, words, packaging, color combinations, building designs, to name a few. Trademark-like protections are extended to services through servicemarks.

Trademarks are protected by both federal and state law. On the federal level, they're protected by the Latham Act, as well as the Tariff Act of 1930. On the state level, they're protected by the common law of unfair competition.

Unlike patents, no formal filing process is necessary to obtain protection for a trademark. However, registering a trademark has its upside.

It makes clear to everyone that a company has the exclusive right to use the trademark. That R-in-a-circle beside a product's name serves notice that the name is not to be bandied about lightly.

It also acts as a deterrent to those with an inclination to use the mark for their own ends.

Moreover, registration can entitle trademark holders to bigger payoffs--like treble damages--should they need to haul a trademark infringer to court.

Registering a trademark is relatively inexpensive--on the federal level, it ranges from $275-$375--so they give their holders a good bang for the buck.

Patents and trademarks offer inventors legal protections for their intellectual property, but it should always be remembered that the value of obtaining those protections should be weighed against the cost of enforcing them. If an inventor can't pursue an infringer of his intellectual property, then securing protections may be a waste of scant resources that could be better spent elsewhere in the value chain.

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