Intellectual Property: An Introduction

If have had a breakthrough invention, work of art, software code, or any other thing or idea that you want to protect, you will need the assistance of an intellectual property attorney. If you seek a patent, you will need a patent attorney, which is a special certification that many attorneys are not eligible for. Attorney Daniel W. Ernsberger, of the law firm Behrend and Ernsberger, P.C., is a patent attorney who can help you in any area of intellectual property, including registering a patent, trademark, or copyright, as well as litigating violations of your patent, trademark, or copyright.

The United States Patent and Trademark Office reported that 244,358 new patents were granted in 2010, up from 191,933 new patents issued in 2009. The numbers of new patents each year is enormous, and the numbers for trademarks and copyrights are even higher. Therefore, before addressing each individual topic of intellectual property (IP) law, a quick background is helpful to understand why the United States offers such strong protection for ingenuity and creativity.

Article 1, Section 8 of the United States Constitution offers the reason: our Founding Fathers directed Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Since the founding of the United States, we have valued new ideas, and Congress created the Copyright, Trademark and Patent systems to provide protection for existing ideas and to incentivize future ideas.

Behrend and Ernsberger, P.C. can assist you with applications for new Intellectual Property protections or to enforce your existing Intellectual Property protection in each of the following areas:

Patents
Copyrights
Trademarks

PATENTS

Patents are granted to an inventor to prevent others from making, using, offering for sale, or selling the invention throughout the United States (or importing the invention into the United States in exchange for making their invention known to the public). If you have created a new invention, you have a right to all of the economic benefits from that invention. If you don’t know how to market your invention, Behrend and Ernsberger, P.C. can represent you in a licensing situation.

The patent process can be lengthy and complicated. First, we need to determine if your invention has already been invented. If it is a genuine new invention, an application must be submitted to the United States Patent and Trademark Office (USPTO). If you seek international protection, additional filings are required. The application is then reviewed by USPTO, which either accepts or rejects the application. If the application is rejected, you may file an appeal. If the original application or the appeal is accepted, the patent is granted. After the patent is granted, however, the inventor must remember to pay the required maintenance fees.

Only attorneys admitted to the Patent Bar may represent you when applying for a patent. Attorney Daniel W. Ernsberger is a patent attorney and can assist you to protect your inventions. Whether you need to patent your invention, contact someone who is infringing on your patent, pursue legal action to protect your patent, or license or sell your patent, the legal team at Behrend and Ernsberger, P.C. can help you- call us today at (412) 391-2515.

COPYRIGHTS

Pop quiz! What is the most common violation of a copyright in the United States? (answer at the end)

Original works of authorship that are fixed in a tangible medium of expression are protected by the copyright system. Expressed more simply, ideas that are expressed in a manner in which the world can understand them are protected. As an example, if a story is told orally around a campfire, it is not protected, but if the story is written down on paper (or typed on the computer), it is protected. A song that is simply sung is not protected, but if the lyrics are written down and set to written music, it is protected. For instance, because this paragraph is written, it is copyrighted. Before 1989, we would have had to attach a copyright symbol (the familiar ©), but now it is not necessary to take any steps other than writing the idea down for it to be protected. It does not matter if the work is published or unpublished. Even a child’s doodles are protected. Currently, a copyright lasts for the life of the author plus 70 more years.

If your idea has commercial value, the old formalities of attaching the © symbol, registering the product with the U.S. Copyright Office, and depositing the work with the Library of Congress are still valuable steps that can offer further protection against infringement. You may also wish to sell your copyrights. One interesting bit of trivia from copyright law is that while, Paul McCartney owns the copyrights to most of Buddy Holly’s songs, Michael Jackson owned the copyrights to all of Paul McCartney’s (with John Lennon) Beatles’ songs. This shows how fluid copyright ownership can be.

If you wish to use copyrighted work, you must either have permission or a license from the copyright holder or be protected by the doctrine of fair use. Fair use allows the usage of copyrighted material for a number of uses, including educational displays. However, the law of fair use can be confusing, so if your work does not clearly fall into protected use, consultation with an attorney is advisable. One other situation where permission to use material that is not yours is when the material is in the public domain. The public domain is a much easier protection. Once a copyrighted work is no longer protected by durational limits. If it was not renewed (prior to 1978, copyrights had to be renewed), it “falls” into the public domain, meaning that anyone can use it for any reason. The Declaration of Independence is one example of a work in the public domain.

It is not necessary for an attorney have any special certification or professional membership to assist you with a copyright issue, but hiring attorneys experienced in copyright law is always a good idea. The law firm of Behrend and Ernsberger, P.C. can help you finish the formalities of copyright registration, file suit against infringers, or determine if your use of something is “fair.” Call us today at (412) 391-2515 for all of the copyright assistance that you need.

Answer to the pop quiz: Singing the song “Happy Birthday.” The song is copyrighted, and unlicensed public performances of the song are copyright violations. (Singing the song at a private birthday party is not a violation, but singing it in a restaurant is a violation.) In fact, the copyright is owned by the Time Warner Company, which collects over $2 million per year licensing the song.

TRADEMARKS

Trademarks are specifically used for commercial purposes. A trademark may be registered with the Patent and Trademark Office, which allows for use of the ® symbol, or it may be unregistered, which is designated by the  symbol (specifically, that symbol is for goods or products). Trademarks protect marketing strategies and slogans and other business-related matters from copying by competitors or other businesses. For instance, the slogan of Subway restaurants, “Eat Fresh,” is a registered trademark, which prevents other restaurants or grocery stores from using the same, or similar, language. Trademarks do not have to be words, however. NBC’s chimes are an example of a trademarked sound.

Much like the copyright system, registration is not necessary to maintain legal rights over commercial language. However, official registration offers the business a host of legal rights that are not available for unregistered trademarks. Unlike copyrights, trademarks can be deemed “abandoned” if the mark is not continually used.

An attorney need not be specially certified to assist you with trademark matters. An attorney who is experienced with the system can help you in every facet of trademark law, however, including registration of the mark and enforcement against infringement. The legal team at Behrend and Ernsberger, P.C. has the experience necessary to help you with your trademark matters- call us today at (412) 391-2515.