An Overview Of Trademarks, Copyrights And Patents


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An Overview Of Trademarks, Copyrights And Patents

  1. 1. AN OVERVIEW OF TRADEMARKS, COPYRIGHT AND PATENTS BY Dr. Basavaraj K. Nanjawade, M.Pharm., Ph.D Asst. Prof. Department of Pharmaceutics, KLES College of Pharmacy, JN Medical College Campus, BELGAUM – 590 010 E-mail:
  2. 2. Constitution <ul><li>The Congress shall have the power </li></ul><ul><li>. . . to promote the progress of science and useful arts, by securing for limited times to traders, authors and inventors the exclusive right to their respective trading, writings and discoveries </li></ul><ul><li>. . . . </li></ul>
  3. 3. TRADEMARK Protection for Traders
  4. 4. What is a Trademark? <ul><ul><li>A trademark is something that distinguishes your products from others within the market. </li></ul></ul>
  5. 5. A Trademark cab be: A word or name A logo A slogan A design
  6. 6. In certain cases, this can be extended to… A colour scheme A smell A sound
  7. 7. Trademark or Trade name A trade name is slightly different to a trademark. A trade name refers to the name of the business or company, where a trademark refers to products/services. However a trade name can be used as a trade mark if it is used to help distinguish between products and service .
  8. 8. Objective of Trademarks <ul><li>To prevent confusion among consumers as to the source of goods or services; </li></ul><ul><li>To permit the trade mark owner to control the products’ or services’ reputation. </li></ul><ul><li>To protect the good will that the trademark owner has built up in his products and services . </li></ul>
  9. 9. Qualifying as a Trademark Trade marks cannot be freely registered and will be investigated thoroughly before registration is approved.
  10. 10. To qualify for registration the trade mark must; . A trade mark is a symbol or sign which differentiates one type of business from another. . A sign can include a business logo, words/content or anything similar. . In order for a trade mark to be registered, it must be sufficient distinct for the service/ goods it is applied to cover. . Obviously, it must not be similar to existing trade marks, nor can it be deceptive or illegal in any way.
  11. 11. Registering a Trade mark You cannot simply apply for a trademark and assume it will be accepted – there is a rigorous examination process which takes place by the patent office before you will find out it your application has been successful. You can read about the complete application process
  12. 12. What is the  symbol This symbol stands for registered trade mark (RTM), and clearly can only be used once your are the owner of the mark. The  symbol usually goes after the trade mark, in a smaller type size than the mark itself, and in a raised position, but this is not compulsory.
  13. 13. Can I Use The TM Symbol A company/trade can use the TM symbol, however this does not mean the trade mark has been registered.
  14. 14. Service Marks (SM) A service mark (SM) is exactly the same as a trade mark with the exception that it. The same rules and principles apply will consider trademarks to include service marks unless for any reason they need to be addressed separately.
  15. 15. What Does  , TM & SM mean & when can I use them? . A party can display  next to a trademark or service mark that has been legally registered. . This symbol will inform people that you have the right to take legal action if the trademark or service mark is violated.
  16. 16. What Does  , TM & SM mean & when can I use them? . A Party can display TM next to a trademark that has not been registered. However, there must be a public claim to the trademark.
  17. 17. What Does  , TM & SM mean & when can I use them? <ul><li>False claims to a registered mark-using the  with non-registered marks-is seen as an act of fraud and offenders will be prosecuted. </li></ul><ul><li>A party can display SM next to a service mark that has not been registered. However, there must be a public claim to the service mark. </li></ul>
  18. 18. COPYRIGHTS Protection for Authors
  19. 19. COPYRIGHT <ul><li>A copyright is an author’s legal ownership of a creative work. Examples of such creative works include a writing, a pictorial work, a three dimensional sculptural work, a musical composition. </li></ul>
  20. 20. What Is Protected by Copyright? <ul><li>&quot;original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device </li></ul>
  21. 21. Conditions for Copyright <ul><li>Must be original work: A uthorship must be original and cannot simply be copied or reproduced from another author. </li></ul>
  22. 22. Conditions for Copyright <ul><li>Must be fixed in a tangible medium: Cannot reside in the author's mind, but must be transferred from the author’s mind onto a fixed tangible medium, such as a writing, a sculpture, a musical work, etc. </li></ul>
  23. 23. Not Protected By Copyright <ul><li>Ideas are not protected: </li></ul><ul><li>including concepts, methods of operation, business systems, processes, procedures, discoveries and natural laws. </li></ul>
  24. 24. Not Protectable By Copyright <ul><li>Facts and research results </li></ul><ul><li>Work without original authorship </li></ul><ul><li>Facts or discoveries </li></ul><ul><li>Government works created by the government. </li></ul><ul><li>These are not proper for copyright protection, but rather should be protected via the patent system. </li></ul>
  25. 25. Protectable Works <ul><li>Literary works and computer programs. </li></ul><ul><li>Pictorial, graphic and sculptural works . </li></ul><ul><li>Copyright in useful articles : The aesthetic aspects of a useful article may be protected by CR if they are separable from the functional, structural components </li></ul>
  26. 26. Protectable Works <ul><li>Blueprints </li></ul><ul><li>Sound recordings </li></ul><ul><li>Architectural works </li></ul><ul><li>Fictitious characters </li></ul><ul><li>Compilations </li></ul><ul><li>Derivative works </li></ul>
  27. 27. Rights Under Copyright Law <ul><li>1) to reproduce or copy the work; </li></ul><ul><li>2) to prepare derivative works; </li></ul><ul><li>3) to distribute copies to the </li></ul><ul><li>public; </li></ul><ul><li>4) to perform in public (such as for </li></ul><ul><li>a play, a musical composition); </li></ul><ul><li>5) the right to display the work in public </li></ul>
  28. 28. Fair Use <ul><li>Fair use is not an exception to infringement, rather, once infringement has taken place it provides a legal excuse for having infringed on the author's copyright. </li></ul>
  29. 29. Who Owns The Copyright? <ul><li>The author of the work is the initial owner of the copyright. </li></ul><ul><li>Works made for hire : the copyright is owned by the employing party </li></ul>
  30. 30. Work Made For Hire <ul><li>1) Work created by an employee while acting within the scope of the employment, particularly where the hiring party has a right to exercise control over the author in the way the work is created. </li></ul>
  31. 31. Work Made For Hire <ul><li>2) Work by independent contractor </li></ul><ul><li>a) the work is a contribution to a collective work; part of an audiovisual work; a translation; a supplement; a compilation; an instructional text ; answers for a test; or an atlas; AND </li></ul><ul><li>b) if the parties agree in a written contract that the work will be considered a &quot;work made for hire.&quot; </li></ul>
  32. 32. Copyright Notice <ul><li>Not required in the U.S. </li></ul><ul><li>Required in other countries. </li></ul><ul><li>Example: </li></ul><ul><ul><li>© 2005 by T-series. All Rights Reserved. </li></ul></ul>
  33. 33. Copyright Registration <ul><li>Copyright is automatic; registration is not required. </li></ul><ul><li>However, registration puts the world on notice and provides the author with additional rights in infringement litigation. </li></ul><ul><li>Registration is recorded by the Copyright Office of the National Library of Congress. </li></ul>
  34. 34. Term Of Copyright <ul><li>Works created during or after 1978: copyright good for the life of the author plus 70 years. </li></ul><ul><li>Anonymous or pseudonymous work, or work made for hire: 95 years from publication or 120 years from creation, whichever expires first. </li></ul>
  35. 35. Remedies For Infringement <ul><li>Injunction </li></ul><ul><li>Seizure and disposal of </li></ul><ul><li>infringing articles </li></ul><ul><li>Monetary recovery </li></ul><ul><ul><li>Actual damages or Statutory damages </li></ul></ul>
  36. 36. Copyright Expires When copyright has expired anyone can use the material without infringing copyright. Copyright cannot be renewed.
  37. 37. PATENTS <ul><li>Protection for Inventors </li></ul>
  38. 38. What is Patents A ‘Patent’ gives an inventor exclusive rights to use their invention for a limited time. These rights will prevent other parties from copying or selling the invention without the permission of the inventor.
  39. 39. What Invention can be Patented? . Products . Process (functional or technical) . Software
  40. 40. A Patent Is A Negative Right A patent is a government issued deed which confers upon the patentee(s) (the inventor who has been granted a patent) the right to exclude others from the invention.
  41. 41. How will I know if my Invention is New Inventors can (Optional) file for a process whereby the patent office searches through existing files to determine if your invention has already been patented. The patent office will also decide whether your invention is not simply a progression of an existing product/process on approval, you are free to apply for a patent.
  42. 42. Types of Patents . Utility Patents . Design Patents . Plant Patents
  43. 43. Utility Patent <ul><li>Utility Patents: are issued for “. . . any new and useful process , machine , manufacture , or composition of matter , or any new and useful improvement thereof.” </li></ul><ul><li>Valid for twenty (20) years from the date of filing or the earliest priority date. </li></ul>
  44. 44. Types of Patents <ul><li>Design Patents: are issued for novel, non-obvious, ornamental design in an article of manufacture, in other words, for its appearance. </li></ul><ul><li>The term of a design patent is fourteen (14) years from the date of grant. </li></ul>
  45. 45. Types of Patents <ul><li>Plant Patents: are issued for new varieties of plants which have been asexually reproduced. </li></ul><ul><li>The new variety must be novel, distinct, non-obvious and must have been asexually reproduced. </li></ul><ul><li>Plants discovered in nature are not patentable. </li></ul><ul><li>A plant patent has the same length of term as a utility patent. </li></ul>
  46. 46. Requirements for Patentability <ul><li>MUST BE USEFUL </li></ul><ul><li>MUST BE NOVEL </li></ul><ul><li>MUST BE NONOBVIOUS </li></ul>
  47. 47. Invention Must Be Useful <ul><li>“ Utility”, is generally self-evident from a description of the invention </li></ul><ul><li>Utility is usually easy to meet. </li></ul><ul><li>Except in your case. </li></ul>
  48. 48. Invention Must Be Novel <ul><li>The PRIOR ART </li></ul><ul><li>NOVELTY = DIFFERENT </li></ul>
  49. 49.     Invention Must Be Non-Obvious <ul><li>Nonobvious to those of ordinary </li></ul><ul><li>skill </li></ul><ul><li>Obviousness – degree of novelty </li></ul>
  50. 50. Anything New Under The Sun <ul><li>A new composition of matter qualifies for a patent, be it inanimate matter or living matter. </li></ul>
  51. 51. What Is Not Patentable <ul><li>Natural laws </li></ul><ul><li>Mathematical expressions </li></ul><ul><li>Abstract ideas </li></ul><ul><li>Anything not USEFUL, NOVEL and NON-OBVIOUS (perpetual motion machine) </li></ul>
  52. 52. Computer Programs <ul><li>Computer programs applied to </li></ul><ul><li>producing useful results may be </li></ul><ul><li>patentable. </li></ul>
  53. 53. Business Methods <ul><li>May be patentable </li></ul><ul><li>If useful, novel, </li></ul><ul><li>and non-obvious </li></ul>
  54. 54. Who Gets The Patent? <ul><li>Foreign countries = first to </li></ul><ul><li>file </li></ul><ul><li>U.S. = first to invent </li></ul><ul><li>U.S. will likely change </li></ul>
  55. 55. Public Disclosure <ul><li>It is best to file a patent application before disclosing an invention to the public. </li></ul>
  56. 56. Don’t Delay in Filing <ul><li>Part of the patent law, prohibits issuance of a patent if &quot;the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.&quot; </li></ul>
  57. 57. You Snooze, You Lose <ul><li>This year is a critical date </li></ul><ul><li>You will lose all your rights </li></ul><ul><li>Invention goes into public domain </li></ul>
  58. 58. File Before Disclosing <ul><li>The inventor always runs a higher risk when disclosing the invention before a patent application is filed. </li></ul>
  59. 59. What to File? <ul><li>Provisional Application </li></ul><ul><li>Regular Utility Application </li></ul><ul><li>International Application </li></ul>
  60. 60. Provisional Application <ul><ul><li>No specific format required </li></ul></ul><ul><ul><li>Must provide enabling disclosure </li></ul></ul><ul><ul><li>Obtain quick filing date (“first to file”) </li></ul></ul><ul><ul><li>Remains in effect for one year </li></ul></ul><ul><ul><li>Must file Utility Application before expiration to maintain the priority filing date </li></ul></ul>
  61. 61. Regular Utility Application <ul><li>but are not an absolute requirement There is an accepted format, but at minimum requires: </li></ul><ul><ul><li>A written description containing an enabling disclosure; and </li></ul></ul><ul><ul><li>At least one claim. </li></ul></ul><ul><ul><li>One or more drawings may be helpful </li></ul></ul>
  62. 62. International Application <ul><li>Patent Cooperation Treaty (PCT) </li></ul><ul><li>U.S. is signatory member </li></ul><ul><li>Unified examination process </li></ul><ul><li>International search and opinion </li></ul><ul><li>If opinion is favorable, file the PCT application in jurisdictions of choice </li></ul>
  63. 63. Patent Pending <ul><li>Once a patent application has been filed, the invention may be marked with the designation “patent pending” as a means of notifying the public of a claim to legal ownership by the inventor. </li></ul>
  64. 64. Patent Pending Protection? <ul><li>NO PROTECTION FROM COPYING </li></ul><ul><li>Right to exclude others = Patent </li></ul><ul><li>Patent pending = notice that a patent application has been filed </li></ul>
  65. 65. The Patent Applicant <ul><li>U.S. application must be filed in the name(s) of the inventor(s) </li></ul><ul><li>Employer may be the owner </li></ul><ul><li>Assignment acknowledges ownership </li></ul>
  66. 66. Who Is An Inventor? <ul><li>Inventor = material contribution </li></ul><ul><li>All inventors must be named </li></ul><ul><li>Not like authorship in a paper </li></ul><ul><li>Inventorship confers legal rights </li></ul>
  67. 67. Collaborative Work <ul><li>Co-Investigators from two </li></ul><ul><li>Universities </li></ul><ul><li>May be co-inventors </li></ul><ul><li>Both Universities will own the </li></ul><ul><li>invention </li></ul>
  68. 68. Questions of Coinventorship? <ul><li>Contact the Office of Technology </li></ul><ul><li>Transfer </li></ul><ul><li>They will help you sort this out </li></ul>
  69. 69. So You Filed, Now What? <ul><li>Application published at 18 months </li></ul><ul><li>Administrative actions within six months </li></ul><ul><li>First substantive review may take 1-2 </li></ul><ul><li>years after filing (Office action) </li></ul><ul><li>Overall process (prosecution) will typically </li></ul><ul><li>take up to about 3 years. </li></ul>
  70. 70. What Do we Need To Know? <ul><li>Patent Attorney or Patent Agent </li></ul><ul><ul><li>Must be licensed by PTO </li></ul></ul><ul><li>Must pass the “patent bar exam </li></ul>
  71. 71. Education Requirement <ul><li>Patent Agents and Patent Attorneys </li></ul><ul><li>are typically engineers or scientists </li></ul>
  72. 72. We Are The Expert <ul><li>We must help the patent attorney </li></ul><ul><li>understand our invention. </li></ul>
  73. 73. The Attorney or Agent’s Job <ul><li>Obtaining a patent is only part of it. </li></ul><ul><li>The trick is to obtain the best patent </li></ul><ul><li>possible. </li></ul><ul><li>This may be the broadest patent coverage permitted by law, in view of the prior art. </li></ul>
  74. 74. Is It Patentable? <ul><li>“ Chance favors the prepared mind.” Louis Pasteur. </li></ul><ul><li>Be on the lookout for NOVELTY . </li></ul><ul><li>Leave the rest to Attorney or Agent’s. </li></ul>
  75. 75. Difference between Patent, Copyright and Trademark Patent allow the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator’s Trademark on the other hand is not concerned with how a new technology is used. It applies to the names, logos and other devices-such as color, sound and that are use to identify the source of goods or service and distinguish them from their competition.
  76. 76. Difference between Patent, Copyright and Trademark Copyright applies to expressive works such as novels, fine and graphic arts, music, records, photography, software, video, cinema and choreography. It’s possible to get a patent on technologies used in the arts, but it is copyright that keeps one artist from stealing another artist’s creative work.
  77. 77. Thank You <ul><li>Questions? </li></ul>