What is the difference between an invention and an innovation?

An invention is a technical solution to a specific problem. This means that the invention must relate to the physical world. Inventions are either products or processes. Product inventions include, for example, machines, chemical substances, electronic components, and often also microorganisms, plants and animals that have been made or modified by man. Process inventions include, for example, physical or chemical methods of manufacture, transformation, measurement, control or others useful in production. Only products or processes made or modified sufficiently by man can qualify as inventions. Products or processes already existing in nature are not inventions.

An innovation is the development of a solution to a technical or organizational problem. It may consist of or include an invention, although many innovations, even if commercially valuable, will not qualify as inventions for the purposes of patent law.

What steps should be taken to protect one’s invention?

In order to preserve one’s rights in respect of an invention, one should not publicly disclose nor reveal the gist of the invention before deciding on the options available, taking into account the nature of the invention. If the invention is of such a nature that it can be easily copied, or there is a clear risk that other inventors may independently develop the same (or an equivalent) invention, then patent protection should be considered. A patent is the most reliable tool to protect one’s invention. This might be the case if the invention is, for example, a process to manufacture a particular substance where that process can be inferred and copied by analyzing the substance.

If it is decided that the invention is to be kept as a trade secret, or that a patent application is not to be filed in the immediate future, the invention should not be disclosed to a third party except in the context of a confidentiality agreement. Before filing a patent application, it is advisable to carry out a preliminary search in patent documents in order to check whether the invention or a part thereof, does not already exist.

What is the main purpose of a patent?

The purpose of a patent is to provide protection for technological advances (inventions). It provides an award for the disclosure of the creation of something new as well as for the further development, or refinement, of existing technologies.
The aim of a patent system is to encourage economic and technological development by rewarding intellectual creativity.

What are the advantages of having a patent?

For the period of the patent the patent holder can exclude others from producing, using, and selling the invention claimed in the patent. 

How long is the term of a patent?

The term of a patent is typically 20 years from the date on which the application is filed. Although it is not necessarily the same for every country it is now provided by international treaty that the term of a patent has to be at least 20 years from the filing date.

What is the patentable invention?

In general, to be patentable, an invention must fulfill three criteria: novelty, non-obviousness, and utility. This means that the invention must be new compared to the state of the art on the filing date of the application, that it should not be obvious to a person skilled in the art, in other words, it must represent a sufficient advance in relation to the state of art, and that it should be applicable in the context of some commercial production. The question whether a particular invention is patentable or not is a matter of national law. Patents may only issue to man-made inventions. In most patent systems, the mere discovery of materials or substances already existing in nature is not considered to be an invention. A plant discovered existing in nature, for example, would not be regarded as an invention. Many patent systems also require that an invention have a technical nature, i.e. that it relates to the physical world. In this respect, pure mathematical or physical formulae, or pure software algorithms would not be regarded as inventions.

Can you protect an idea?

An idea that does not materialize in an invention (i.e. a product or a process) cannot be protected by patent. Ideas may, of course, be kept secret. But secrets can only be protected against their illegal or unauthorized access, use or communication to third parties. If an idea is kept secret and the same idea is developed independently by another person, the fact that the first idea was kept secret will be of no avail to prevent the other person from using his idea. A secret idea is not an industrial property right; it is merely protected against its illegal appropriation or use.

Who has the right to a patent for an invention?

The physical person or persons that make an invention (i.e. the inventors) have the right to the patent for that invention. However, if the inventor is an employee, the ownership of the employee’s invention is usually regulated either by contract or by law. Consequently, the inventor may have to assign the invention to his employer, if his employment contract so provides. Alternatively, the law may provide that it is the employer who has the right to a patent for the employee’s invention. The inventor will nevertheless always retain the right to be recognized and mentioned as the inventor, unless he expressly renounces this right.

Who has the right to commercially exploit an invention?

If an invention is publicly disclosed and no patent for it has been obtained or applied for, anyone can commercially exploit the invention. The only way to have control over the commercial exploitation of an invention is to apply for and obtain a patent. The mere act of inventing only gives a right to a patent for that invention, but if the patent is not actually obtained the inventor will have no control over the commercial exploitation of his invention.

A patented invention can be exploited directly by the patent holder himself or by one or more persons authorized by him. These persons are called licensees. Depending on what the invention is, the exploitation can take place by way of manufacturing or distributing the patented product, or using the patented process for industrial or commercial purposes.

Does a world patent exist?

No, in the current state of the international patent system. Unfortunately, a patent is only effective in the territory (country or region) for which it is granted. This means that patents for the same invention have to be taken out in every country (or region) in which protection is sought.

However, there is an international agreement administered by WIPO, the Patent Cooperation Treaty (PCT), for filing, searching, publication and examination of international applications. The PCT makes it easier to obtain patents in the PCT Contracting States by providing for the filing of one international application, which may be subsequently prosecuted in the multiple designated national and regional offices of States party to the PCT. However, even under the PCT, the granting of patents is left to those designated offices.

Who pays for patent protection?

The patent applicant (who may be, for example, the inventor, joint inventors or a company to which the patent application was assigned) must pay fees for the filing, search, examination, publication or other procedures relating to the application or the granted patent (e.g. litigation). Once the patent is granted, the patent holder, in most countries, will have to pay annual or maintenance fees in order to maintain the patent in force. Those fees are usually collected by the government entities in charge of granting patents (usually the national/regional patent offices). In addition, fees are usually also due for any professional services required in connection with the patent-granting procedure (patent attorneys, agents, translators, etc.)

Is the information contained in patent documents a secret?

In return for the exclusive right to control the use of the invention during a limited period of time, the inventor has to disclose the invention in the patent application in a manner sufficiently clear and complete to permit a person having ordinary skill in the relevant art to carry out the invention. This also allows the society at large to be informed about the advance in technology. The invention disclosed in a patent application will be kept secret until the patent office publishes the patent application (usually within 18 months from the date of filing, or from the priority date, if the application claims the priority of an earlier application), or until the granted patent is published.

Because an invention must be absolutely new worldwide in order to be patentable, it should not be disclosed before all the required patent applications have been filed in each of the countries and regions where protection is sought. After all the required patent applications have been filed, the invention may be publicly disclosed (for example at a scientific congress or in an article in a scientific journal) without loss of rights. If the invention is disclosed before all the patent applications (or at least the priority patent application) have been filed, such disclosure could effectively interfere with patent applications that are filed for that invention at a later date.

Should universities be involved in patenting inventions and transfer of technology?

The basic purpose of universities is to generate and transfer knowledge to students, researchers and society at large. In the past many scholars and researchers would just publish their new findings and research results (as part of the academic exchange of new knowledge) and leave it to the industry to commercially exploit such knowledge. Today universities are increasingly conscious that research results in themselves also have a commercial value. Those results can be sold or licensed and their owners can earn benefits from such operations. For that reason, an increasing number of universities whose faculties are engaged in scientific research take steps to protect their findings and research results. By doing so they retain control over the commercial use of their research results. A university that owns a patent may choose to license it or assign it free of charge, or against payment or other consideration.

What are the options for the commercialization of inventions?

The holder of an invention has several options to commercially exploit his invention. Those options include: 

The industrial development and commercialization process of an invention involves risk, particularly financial risk. Therefore, it is highly advisable that an extensive market survey be undertaken about the commercial viability of such exploitation.

What other forms of intellectual property rights exist other than patents?

There are Copyright and Related Rights and Trademarks.

Trademark FAQ's

Other Frequently Asked Questions

1. What is a trademark?
A trademark may be a word, symbol, logo, slogan, or any combination thereof that is used to identify and distinguish one person’s goods or services from the goods or services of another, and serves as an indicator of source of the goods or services. A consumer encountering a trademark identifies products bearing the same mark to be sold by, or produced by, the same producer, even if the name of that producer is unknown to the consumer.

2. What is the difference between a service mark and a trademark?
A service mark is used in connection with services, while a trademark is used in connection with tangible goods. The general terms "mark" or "trademark" may be used to describe both trademarks and service marks.

3. Can I reserve a trademark?
No. In order to make an application for a state trademark or service mark, the trademark must generally be in use. An application made prior to use is considered void and will be refused registration by the secretary of state. A state registration that was obtained prior to actual use may be subject to judicial cancellation.

4. How are trademark rights acquired?
Trademark rights are not acquired through the registration process. Common law ownership rights are acquired through actual use of the mark in commerce. Generally, the first person to use a trademark is the first person to acquire rights to the mark.

5. Do I need to register my trademark?
No. It is not required that you register your trademark or service mark in order to establish ownership rights. However, besides providing constructive notice throughout the state regarding your claim to ownership of the trademark, registration provides the trademark owner with certain procedural advantages should it become necessary to judicially enforce your trademark rights. Registration of the trademark creates a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark in commerce in connection with the goods or services described in the application.

6. Are there any special requirements for obtaining a state trademark registration?
Yes. The requirements for state trademark registration vary by state. There are two basic requirements for state trademark registration. A mark must be in use and must be inherently distinctive or, if not inherently distinctive, it must have acquired distinctiveness through a person’s substantial and exclusive use.

A mark used in association with tangible goods is generally considered in use when: 1) the mark is used on, or affixed or attached to the product; and 2) the product is sold or otherwise publicly distributed for sale in the state. A mark used in association with services is generally considered in use when: 1) the mark is used in association with the sale or advertising of the services; and 2) the services are rendered in the state.

Only distinctive words, names, symbols, or logos are entitled to registration. Non distinctive designations or devices include: surnames, terms that are geographically descriptive of the origin of the goods or services, and terms that are commonly used in describing the product or service, or that directly describe the qualities or characteristics of the product or service.

7. Do you need to be a corporation to obtain a trademark?
No. The trademark applicant is the person who owns the mark. Normally, this is the person who produces the goods or who renders the services associated with the mark and who controls the use of the mark. That person can be an individual sole proprietor, a general partnership, a limited partnership, joint venture, corporation, limited liability company, unincorporated nonprofit association or other legal entity.

8. Can a state trademark application be used to register a trade name statewide?
No. Generally, there is no state trade name registration act. In addition, a trade name, per se, is not entitled to registration under the provisions of some state laws. However, a trade name that also functions as a trademark is entitled to registration. Whether a trade name also functions as a trademark is generally based upon the manner in which it is used and displayed. Generally, a trade name functions only as a trade name when it is followed closely by the business address or telephone number of the enterprise, or when it is accompanied by such phrases as "Manufactured by," "Distributed by," or "Serviced by."

9. Can I use the "TM" or "SM" notation without first registering my trademark?
Yes. Prior approval is generally not required to use the "tm" or "sm" (trademark or service mark) notation. There is generally no symbol or designation to indicate state trademark registration. The "tm" designation does not mean that the mark is registered with the state or that the mark is entitled to registration with the state. The "tm" notation is merely a means of informing third parties that the person claims trademark rights to the word, slogan, or phrase associated with "tm" or "sm" notation.

10. Do I need to use an attorney to make an application to register a trademark?
No. Although it is not required that you use an attorney to pursue a trademark application, it is often desirable to employ an attorney who is familiar with trademark matters.

11. How do I find out whether the mark I’ve chosen is already registered?
Information on active state trademark registrations is available by calling the Secretary of State's office. It is strongly suggested that you search federally registered trademarks and service marks, since a federally registered mark generally preempts a state issued registration. The United States Patent and Trademark Office offers on-line searching of its trademark database at http://tess2.uspto.gov/bin/gate.exe?f=searchss&state=4004:ahgttt.1.1.

12. Does the secretary of state search federally registered trademarks, or any other databases, when examining a state application?
No. The secretary of state generally does not search the state assumed name records, state corporation, limited liability company or limited partnership names, or the United States Patent and Trademark Office when examining a submitted trademark application. The responsibility of performing a more substantial search to avoid infringement situations is placed upon the person seeking to register a trademark or service mark.

13. Can I expedite the review of a trademark application?
No. Trademark applications are examined in the order in which the applications are filed; including applications concurrently processed for registration of the same or confusingly similar marks. Consequently, due to the nature of the examination process a trademark application is not processed on an expedited basis.

Copyright FAQ's

Copyrights -

WHAT ARE COPYRIGHTS?
Basically, a copyright gives you the "right to reproduce (copy)."  Whatever it is, be it artwork, written material, music, software - if you can imagine it in your head, and place it in the real world in some form, you can control what happens to it.  It is your creation, you determine its fate.

Copyrights define the ownership of the work and prevent others from using the work in a manner not intended by the author.  Copyrights allow you to create your work AND allow you to share them with the world, with at least some assurance that you will receive credit and possibly some compensation (either monetary or in accolades).  Not only that, but it allows you some measure of protection against someone else taking your creation and using it in a manner that you would not approve of.  These laws also put the control of the income in your hands - to give away or to use to earn your living, as you prefer.
In the United States, there are 7 basic rights that the copyright code recognizes - and that the copyright holder ALONE controls:

A copyright allows you control of all of these rights, and they cannot be taken from you (except in VERY LIMITED legal actions).  Only you have the right to control how these are applied.

WHAT IS PUBLIC DOMAIN?
Public domain is the opposite of a copyright.  If you place your work in the public domain, then you have waived all the rights to it, and no longer have any say in what happens to it.  People may alter it in whatever way they choose, people may profit off it in any manner, people may reproduce it in any possible media available.

Be aware of all that public domain implies before you consider placing your work in the public domain.  No one can place your work in the public domain without your express WRITTEN consent (except in VERY limited circumstances).  If you find that your copyrighted work is being used "in the public domain," then you can take action against them.

You cannot place your work partially in public domain.  You must either give up all rights, or none.  And once a work goes into public domain, it can never be copyrighted again.

SO ONCE I HAVE A COPYRIGHT, I CAN NEVER LOSE IT?
Yes, and no.  There are time limitations on copyrights.  Currently, copyrights last for 70 years past the life of the author, then they automatically revert to public domain (for works made after January 1, 1978).  There are exceptions to this rule; check about your particular case.  When dealing with "Work For Hire," corporate ownership, or anonymous publications, different rules apply.

Some copyrights MAY be held in perpetuity, if they are maintained, as arrangements made previously could possibly keep them out of public domain essentially forever (in the form of Grandfather Laws).  But these are very much the exception to the rule.  These type of copyrights are being challenged today - not in the country of origin (where the Grandfather Laws would apply fully), but in other countries that have copyright agreements with that country.  The argument is that while a country may pass a law that widens or narrows copyrights for a particular work, such a deviation from the norm need not be carried to other countries via Berne or other conventions - that is, there is no provision in international copyright agreements to support such a deviation.

During the life of your copyright, it cannot be taken away from you without permission except in very special cases.  One such case would be if you knew there were rampant violations occurring that you did nothing about.  That by itself would not cause a loss.  But if you discovered someone doing something you didn't like, and they could prove that you never lifted a finger to stop or even inform the multitude of other infringers, then they could press a case that you had let the work fall into public domain.  This is extremely rare, and few have won, but it is theoretically possible.  This is a reason to always sign your work, and keep a record of it's first publication - for if it was never attributed to you, and there was no way to tell that you had not released it to public domain, then how strongly could you defend it years down the line if after allowing a multitude of infringements when an infringement came along that you wanted to stop?  If you always treated it as though you had put it in public domain, and people were aware of this, then the logical assumption is that you HAD put it in public domain.

Your best way to prevent this is to make the minimal attempt to contact all infringers that you are aware of, showing an attempt to control your copyright.  If you were not aware of the violation, you would of course not be held responsible for it.

 HOW DO I COPYRIGHT SOMETHING?
The Berne Convention, to which the U.S. is a signatory, states that the mere creation of the work places it under copyright protection.  It would not hurt to place the standard copyright symbol on the work, with your REAL name, and the date (or year) of creation.  It takes almost no time; there is no reason not to put a notice on anything you do, and it will invalidate the excuse of  "Innocent Infringement".

ALWAYS use your real name, or if you must, a registered pen name.  NEVER use a "fan" name, or some silly name you came up with.  If you cannot prove that you are that person, then you cannot claim the copyright on the creation.  The Copyright Office does not require you to use your real name, but if you must take legal action, you must be able to prove that you were the one that created the work.  The use of a registered "D.B.A." or "pen name" should work, but if you use a "fan name", you might have difficulty.

If you want to go one step further, you can register it with the U.S. Copyright Office.  Basically, you fill out a form, pay a fee, and send them 2 copies of the "best" reproduction of your work (if a book, the hardback version vs. the paperback, etc...)  You will then receive notice that you have it registered.  This means that the work is now on file in the Library of Congress, and that is the best proof that on a certain date, you created that work before any other.

Registering it also allows a copyright owner to sue for statutory damages as well as attorney's fees in case of infringement, as opposed to basic "actual losses", which may be difficult to calculate.

The mythical "mail myself a copy and don't open it" method offers little more protection than the non-registered copyright, and is generally a waste of a stamp.  In the U.S., only registration with the Copyright Office is acknowledged as legal registration.

BERNE CONVENTION?  WHAT'S THAT?
The Berne Convention is the latest multi-national agreement on copyrights.  The United States signed to the convention in 1988.  The Berne Convention allows a certain minimum level of copyright protection in all signatory countries for any person with a copyright.  While some laws & levels may be different in other countries, you are guaranteed at least certain protections.  Countries that have not signed to the convention offer no reciprocal agreements, and they are often referred to as "copyright jungles" - there is often rampant copyright violations in those countries.

WHAT CAN I COPYRIGHT?
You can copyright literary works, musical works, dramatic works, & choreographic works.  You also can protect pictorial, graphic & sculptural works, motion pictures & audiovisual works, sound recordings, as well as architectural works.  Software would be registered as "literary works," maps & architectural plans would be registered as "pictorial, graphic & sculptural works".

You CANNOT copyright works that have not been fixed in a tangible form (that is, you have an idea, but haven't written it down), titles, names, or slogans.  You cannot copyright ideas, procedures, methods, concepts, principles (although in limited forms these MIGHT be patented, such as a manufacturing method).  You cannot copyright readily available information (standard calendars with dates, lunar information, or public holidays; tables of information available publicly, etc...)

Works by the U.S. Government cannot be copyrighted (as they are generally produced for public use, or "public domain"), although in certain cases, proper notice must be given as to the source if you use large portions in a work you wish to copyright.

HOW CAN I GET AN INTERNATIONAL COPYRIGHT?
There is no such thing as an international copyright. A copyright owner may either depend on cooperation with a Berne Convention country for protection, or obtain a separate copyright in a particular country.  Protection in other countries, while it might be of the same level, may take a different form.  Some countries may allow a certain level of duplication, with some form of remuneration going into a general fund: the copyright owner would have to apply to that fund for reimbursement.  Some may allow limited duplication if the work has been out of print for a certain time.  And remember that if you are aware of a copyright violation in another country, you must follow that country's rules in dealing with the situation.

HOW DO I COPYRIGHT A CHARACTER I JUST DESIGNED?
Well, you can't copyright a character - although you can copyright his image.  You can compile images of that character in a book, and register that.  There is generally no need to register the specific character - the general copyright does that.  If someone uses an exact (or reasonably similar facsimile) image of the character (that is, you could look at the picture and say "That's !"), then they have violated your copyright.  If the character is vaguely similar, yet not the same, there is not a violation.
Best protection would be to get the character's image published somewhere (comic, fanzine with a wide circulation, etc...), so that the image is fixed in hard copy, and can be referenced later.  Registering this book (as above) would show that you created the character first, and would make someone else attempting to use your creation look very bad.

You can trademark a character, although that is more complicated and costly than a copyright.  If you have trademarked a character, then no one may use that character without your permission.  The one advantage of a trademark is that it is obviously trademarked (you must use the ® or ™ with every notice), and the law plainly states that the infringer must prove that the character is NOT trademarked (or the mark has lapsed), otherwise he is automatically at fault; with a copyright, you must prove that he has caused damage before a judgement can be set against the infringer.

WHAT IS FAIR USE?
Fair use allows someone to use excerpts of a work for journalistic review or educational inclusion.  It is generally considered valid in educational or journalistic settings, generally not so in a "for profit" setting. Fair use does not allow someone to take a drawn image and scan it, then post it on a web site.  That is a violation of the creator's right to reproduce.  Nor does it allow someone to create an image of another's copyrighted character for "public use."  That is a violation of their right of derivative work.  Nor can someone make a scan of an image (or large excerpt from a literary work) for use as advertising - this violates at least 3 of the creator's rights.  Unless someone is using it in an educational or journalistic manner, be very careful about using "Fair Use" as an excuse to violate someone's copyright.  There are very limited uses outside of educational or journalistic endeavors.

WHAT IS "WORK FOR HIRE"?
Work For Hire is a agreement that whatever someone produces while in the employ of another belongs to that other.  ALL rights belong to them.  The general limitations would be "all work produced while on the clock," although some can be "24 hours a day - 7 days a week - 52 weeks a year."  Work For Hire contracts can assign away all the rights to creations.  There is no "implied" Work For Hire; it must be in writing, and both parties must sign to it. Much of what a staff artist (or a computer program designer) for a company does is "on the clock" and will be Work For Hire.  

WHAT IS THE STAUTE OF LIMITATIONS FOR COPYRIGHT INFRINGEMENT?
The statute of limitations of copyright infringement is generally 3 years.

IS "FOR PROFIT" NECESSARY IN COPYRIGHT INFRINGEMENT ?
The fact that money does or does not pass between doesn't affect anything.  If someone violate any one of the rights a copyright holder has, it's still a copyright violation. 

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