FAQ
Answers
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Patents Trademarks Copyrights Computer Internet
A patent is a grant by a national government permitting the patent owner to exercise within that particular country exclusive control over the commercialization of an invention for a fixed period of years. During the effective term of a patent, the patent owner is provided the legal ability to approve all sales, offers for sale, manufacturing, and use of the patented invention. The patent itself is considered to be personal property, is inheritable, and may be sold and/or licensed to others.
Is patent protection available for my invention?
The answer is "yes" for all types of mechanical and electrical products. The U.S. Patent Statutes are quite broad in their definition of "patentable" subject matter for inventions, including all types of machines, manufactured items, and chemical compositions. Additionally, recent court decisions have enlarged traditionally-understood patent subject areas to also include computer software, living organisms, and even certain types of business systems and plans.
That question can only be answered after fully understanding what types of similar "inventions" have already been placed into the public storehouse of knowledge. A patentable invention must be in some way different from previously disclosed, similar inventions, and the nature of the difference(s) must be of sufficient degree ("unobvious" in the language of the patent statutes). One of the reasons for conducting a patent search is to evaluate the opportunity for obtaining meaningful patent protection for a particular invention by attempting to locate prior patents that discuss similar concepts or structures.
Assuming your invention is not too complex, a realistic budget for the preparation, prosecution, and issuance of a U.S. Patent is in the $6,000 to $10,000 range. That said, it will be harder and more expensive to COMMERCIALIZE your invention than it will be to patent it.
For that reason, we STRONGLY RECOMMEND beginning the patent process as economically as possible - taking advantage of the provisional patent application, enjoy the "patent pending" for a year, and trying, during that year, to assess the commercial viability of the invention.
If it seems viable (based upon the interest of others, and your cost/sales research efforts) you then can feel more confident in making the additional investment in the patent process.
A provisional patent application is a temporary filing that secures a "patent pending" filing date but is a less formal document than a full utility patent application; and consequently, of lower cost. To take best advantage of such a filing requires the description of your invention to satisfy the disclosure requirements of a full utility application, including both text and patent drawings. The term of a provisional patent application is ONE YEAR, at which time you must either convert the application to a full utility application or permit the patent pending date to lapse.
What
do the trademark symbols mean and can I use them?
No doubt you've seen the superscripted "tm" - tm and an encircled "r" - ® following trademarks. Examples are Speedy Printtm for speedy printing services and Windows® for software. The "tm" means the owner is claiming the term preceding as its trademark. The tm may be used without any filing whatsoever. Of course, a search should first be commissioned to determine whether the mark is available for appropriation. The tm is often used when the selected mark cannot be registered federally on the principal register as the mark is not immediately distinctive and merely descriptive of the products or services.
The ® signifies that the preceding term has been federally registered on either the supplemental or the principal trademark register in the Trademark Office. Marks entitled to register on the principal register must be inherently distinctive - not merely descriptive as Speedy Print. However, assuming no likelihood of confusion with existing federally registered marks, descriptive marks such as Speedy Print may be registered for the supplemental register. No federal remedies attach as they do for registration on the principal register.
Will the filing of a corporation keep others from using my name?
Incorporation alone has no effect on trademark rights and your right to prevent others from using the name. It is when you use the mark in connection with sales of the goods or advertising of the services and the public comes to know that mark as meaning the goods or services come from you that you gain legal rights to stop another. Thus, trademark rights arise from your use of the mark. Of course, the mark can be submitted for registration at the federal or the state level but these registrations must be based upon a mark that is being used or there is a real intent to use the mark within a limited time. These registrations provide additional remedies against an infringer.
Must I file a copyright registration by a certain date?
Copyright exists when a work is "fixed in a tangible medium of expression." It does not require the filing of an application for registration. However, prompt filing for registration gives the copyright owner substantial remedy benefit should someone infringe. Notably, there is a legal presumption created that the work is entitled to copyright and that the owner is the party stated. Further, if one registers before infringement or no later than 3 months after publication, the owner may be entitled to elect statutory damages and be eligible for the recovery of attorney's fees. These important benefits encourage the owner to file early.
Should I register my computer software myself?
It has been our experience that software developers in particular have benefited from seeking counsel to prepare at least the first few software copyright registrations. Because developers have a multitude of additional issues to consider, these should be addressed prior to registration. For example, a software work may contain the work of others, either subcontractors or from other sources. There may be patent issues. Registration may have to be done carefully so as to preserve and protect included trade secrets. Ashton-Tate put the dBase copyright at risk for failing to disclose included materials written by Wayne Ratliff at the Jet Propulsion Laboratory in Pasadena.
How
can I monitor my software developer?
We do have recommendations for clients who are not "code savvy" but need to evaluate the progress of their software project. Undoubtedly your contract for software development will specify periodic delivery of code. These software "deliverables" should be reviewed by an independent software engineer familiar with the development tools used by your developer. If your developer is using Microsoft tools for example, you would do well to consider a Microsoft Certified Systems Engineer (MSCE). Microsoft provides a listing of MSCE's. Because you do not want to be dependent solely on your current developer for maintenance and future development, it is imperative that your independent reviewer confirm your code not only meets the contractual functionality but that it has attributes that make it easily maintainable and extensible.
First, your code should be commented. Comments consist of text in the code that is ignored by the program. Commenting communicates to one who is unfamiliar with the code what the developer intended. Commenting should try to answer the question of "where does this code fit into the overall scheme," and "why does this code exist?" The point of commenting is to tell the reader "why," because the code itself tells "how." Also, expect and demand that the code be indented. Subordinate lines should be indented to make the code easily understood by the reader. Judicious use of "whitespace" too makes code easier to read - which ultimately means maintainable.
Confirm your reviewer finds that the code in the project is appropriately "modularized." This term means that your developer has moved blocks of code into their own separate functions or subprocedures as much as possible. Modularization increases code reuse and ease of maintenance. It is far easier and less problemmatic to update or modify a narrowly-crafted procedure than work with a huge chuck of spaghetti code.
Check for other good developer habits. These include using a type of prefixing notation - called Hungarian Notation - to variables that describe what type of data will be used in the variable. For example "strAnyVariable" tells a reader that this variable is to hold "string" data. Check to see if the developer has "expected the unexpected" in user actions. Users are an unpredictible lot and they do unexpected things. If the developer has planned only for expected user actions - he or she is NOT DONE. Options that are not relevant to a user operation should be unavailable to the user. And the user should always be given a back-out option if he or she has a change of mind.
To reiterate, your independent reviewer should do the obvious check for functionality. But these additional suggestions offer you some guidelines to check that the code will be maintainable and extensible. In today's competitive commercial environment, you must recognize that the software product you contract for today will need much enhancement and rewriting in the future. Plan for it!
What is a domain name?
A domain name is an alias for your IP (Internet Protocol) number address. When you sign up to put a Web site on the Internet, you are given an IP Number, or address. All the computers on the Internet can view your site by retrieving this IP number. A domain name will allow you to have a World Wide Web address like www.yourdomain.com instead of having only a number such as 208.215.74.212.
Carefully selected domain names can have great advantage. For example, if your company, Acme, Inc., manufactures widgettes (a variety of widgets), and you are considering sales or advertising on the internet in the future, it would be wise to reserve the domain name widgettes.com for the address of your site. Many consumers first try to locate products or information on products by keying the domain into the browser, i.e., www.widgettes.com. Further, if a competing manufacturer of widgettes had registered the site first, imagine the customers that might be diverted to THEIR site for their widgettes.
Not only might you consider the product as a domain, but the product trademark or business name should also be considered for a domain name. If your trademark for widgettes is Cantebra, then a domain cantebra.com should be considered. Customers who know Cantebra may then key www.cantebra.com into their browsers and visit your site. Likewise, if your customers know you as Acme, Inc., you might consider registering www.acme.com. Note that many domain names are already taken so if you can't get exactly what you want, you may be able select and register a domain name for your website that is at least easier and more memorable than your competitor's domain name. Check Network Solutions Whois for availability. While .com is the more valuable top level domain name, .net is less crowded and may offer you the opportunity to register your domain name where the yourname.com is already taken.
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How can I register a domain name?
Dot com (.com) and dot net (.net) domains are registered with Network Solutions (Internic). You can check for availability of a domain name at Whois. In addition to the identifying data, you need an email address and a server address. Upon registration, Internic will bill you $70.00 for a two-year registration. We can register you, and give an email and server address for you until you have developed your site and selected your website host. If the name you want is available and you are even considering an internet presence, we suggest you Register now! to reserve you domain name before it is registered by someone else. But, before you do, consider the importance of having a professional trademark search first.
Unless your selected domain name is generic (the dictionary word for the thing itself - as in www.hammocks.com) it may have trademark significance. Accordingly, it is very important to know that the domain does not infringe another's trademark. Imagine developing a significant internet presence only to learn that your selected domain infringes another's trademark rights. Being forced to change domain names could well work a commercial disaster. We strongly encourage you to commission a professional comprehensive search - including federal and state trademark registrations, unregistered uses (common law uses) and other domain names - before you register.
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Who should be the registrant and administrative contact on my domain name?
Permission of the administrative contact is required for any changes in the domain name registration including a transfer to a different server. Consider that you retain a web company to produce a site for you. As part of their service, they register your domain name and show themselves as the administrative contact - or worse, the owner - registrant! Should a dispute arise between the parties and you desire to move your domain to a different server, you will need their permission. This can be an unfortunate situation for you. When you have us register your domain, you will be shown as the registrant AND the administrative contact. If you already have a domain name, you should query Network Solutions' Whois to determine the registrant and administrative contact at your domain name.
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Can I get Network Solutions stop someone from using my domain name?
The short answer to this question is easy - it depends! If you have a federally registered trademark on your second level domain name (the name before the dot - e.g., "yourname" in yourname.com) that preceeds the date that another registered an identical second level domain (yourname.net instead of your yourname.com for example) you would be able to invoke the Network Solutions Dispute Resolution Policy. In accord with that policy, a letter is sent to Network Solutions with a copy of your federal registration on the trademark word (not the design mark). Network Solutions then contacts the other domain holder and, if he was unable to likewise produce HIS federal registration on the same trademark (presumably in another channel of trade), his domain would be put on "hold" status after a short opportunity for him to make an orderly transfer to another domain name. The "hold" status would remain pending resolution of the dispute, by court or otherwise. You can clearly see the value of having a federal registration for your domain name.
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Should I get a domain name similar to my competitor's?
Domain names are first come-first served. Thus, assuming the domain was not already taken, you could register "seikos.com." Whether that is a good idea is another question. Seiko Instruments may not invoke the Network Solutions Dispute Resolution Policy as explained above because "seiko.com" and "seikos.com" are not identical second level domain names. However, Seiko is not without effective legal remedy. If there was a likelihood that customers visiting "seikos.com" would be confused as to the association, affiliation or sponsorship of the goods or services at the site, Seiko would certainly have a valid claim of trademark infringement. Even if the goods or services were so different that customers would not likely be confused, Seiko, being the owner of a famous mark, may have a claim for trademark dilution. Thus, if you are considering registering a domain that is another's trademark, or confusingly similar to another's trademark or registered domain, think again. Don't risk running a red light!
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