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Legal Knowledge, Human Wisdom

Trademarks, Patents and the Filing Process

General Article

Trademarks and patents are both legal protections for intellectual property. They are different in that a patent issues property rights to an inventor, whereas a trademark is issued to prevent someone else from creating an identical product or copying the identifying name, symbol, word, design or logo. Another key difference between patents and trademarks is that patents have an expiration date and a trademark does not expire, so long as it is still being used in business. Filing for a trademark or patent is a complicated legal process that requires many steps to achieve, and although can be quite costly, is worth the investment for protection.

Trademarks

Before filing for a trademark with the USPTO, that is the United States Patent and Trademark Office, it will be necessary to conduct a complete search to determine whether the symbol, word, logo or design is already being used. If you start the process and skip this step and it proves that a trademark already exists, the fee will not be refunded. To file for a U.S. trademark, the applicant will need a record of the first date of use, as well as the first date the potential trademark was used across state line. For service marks, it is necessary to document when business cards and letterhead were used. It is a good idea to enlist the help of a trademark attorney minneapolis mn to ensure that everything is in order and the appropriate documents are filed in a timely manner.

Utility and Design Patents

With regard to patents, the most common types of patents are utility patents and design patents. A utility patent protects how an invention is used and how it functions, while a design patent protects the way an invention looks.

However, before either can be granted, an exhaustive search must be conducted to see if the patent or art was used or applied for previously. The search will be conducted within the U.S., but also across international lines and foreign publications including the Patent Cooperation Treaty and the European Patent Office. Legal counsel will oversee the search and write a legal opinion based on the findings at the end of the search. The patent and prior art search could take from one to three weeks.

Filing the Provisional and Non-provisional Patents

The next step in the process is to draft the patent application with the USPTO. There are two types of patent applications: provisional and non-provisional. A provisional patent lasts one year, and it gives the inventor time to do more research and perfect their invention and file for the conversion of the provisional patent to the non-provisional patent. The provisional patent provides no legal protection. To have the protection that prevents someone else from coming along and copying the invention, the provisional patent must be converted to a non-provisional patent.

The application process for a non-provisional patent is lengthier than the provisional patent and can take from one to five years to be approved. The non-provisional patent application must be filed within one year of the provisional patent. In other words, before the provisional patent expires, the non-provisional patent application must be filed. Once the non-provisional patent is filed, the status on the invention will change to “patent pending” while it is being approved.