Table of Contents

Patent FAQs:

What is patent protection?

Patent protection is a government-issued intellectual property right that allows the patent owner to prevent others from making, using, selling, or offering to sell products and services that are covered by the claimed features of the patent. Having said that, a patent does NOT give the patent owner the right to make, use, sell, or offer to sell products and services that are covered by the claimed features of the patent. In other words, a patent does not give the right to do anything other than prevent other people from doing things. It’s also worth mentioning that a patent is only enforceable in the country that granted it, and only during the specified patent protection period. There are three basic types of patents, and each offers protection for inventions that fall into different categories. A utility patent protects a process, a method, a machine, a manufactured device, or a composition – or an improvement to any of those things. A design patent protects the ornamental design embodied in, or applied to, an article of manufacture. And, a plant patent protects an invented or discovered asexually-reproduced plant.

How is utility patent protection obtained?

How do you obtain patent protection for your invention? Well, first, you must verify that the subject matter of your invention is patentable under the patent laws of the nation in which you are seeking to enforce your patent. In most parts of the world, for a utility patent, your invention must be new, useful, and non-obvious. Now, having said that, in patent offices throughout Europe, the non-obvious feature is referred to as an inventive step. With this in mind, an inventor often engages a search professional to perform a patentability search to determine whether an invention is non-obvious or required an inventive step. Then, with favorable results to the patentability search, an inventor will typically hire a patent professional (a patent lawyer or a patent agent) to prepare and file a patent application with the patent office of the nation in which he or she is seeking protection. Once filed, the patent professional will advocate for a few years on behalf of the inventor to get the broadest possible protection, and the patent examiner will work to ensure that the inventor does not get more protection than his or her invention deserves based upon the prior art (prior publications that are relevant to the subject invention). Eventually, the patent examiner will grant or reject the patent application. If the patent is granted, as long as the periodic maintenance fees are paid, the life of the patent will be approximately 20 years from the date of initial filing or the date of priority.

How long does utility patent protection last?

While each country has its own body of intellectual property law, the life of a utility patent is typically twenty years from the date the patent application was filed, or from the priority date, whichever is earlier. To have this life of 20 years or so, the patent owner is required to make timely periodic maintenance fee payments.   

Why is patent protection important to your business?

How can patents benefit your business?  Well, keep in mind, a patent gives you exclusivity throughout the term of the patent; the power to prevent your competitors from making, using, and selling products and services containing your patented technology.  As a result, you have the power to be the only source of that product, giving you substantially more control over pricing, margins, distribution channels, and customers.  

Also, you can also license or sell rights to your patent.  Imagine the margins on licensing revenue.  No costs associated with production, delivery, customer service, or any business infrastructure.  You’re selling ideas.

You can also use your patents as a shield against patent infringement.  Before bringing a lawsuit against you, smart companies will analyze your portfolio to assess whether you have the right patents to strike back against them. If you do, they’ll be inclined to negotiate a cross license, or walk away.

Additionally, you can leverage your patents to bring in investors. Savvy investors appreciate the power of patents and place high value on the right patent portfolios.  And, just as savvy investors appreciate the value of patents, so does the marketplace. Ultimately, the right portfolio can increase shareholder value.

Design patent protection vs. copyright protection: what is the difference?

How do Design patents compare with Copyrights in the US?  Well, the first key difference is that Design patents must be integrated with an article of manufacture; with a product.  This not the case with copyrights.  If you draw a picture, you can obtain copyright protection for that alone, whereas with Design patents, you must first integrate that picture with a product. 

The second key difference relates to their duration.  Simply, copyrights have a much, much longer life.  A copyright can last for the life of the author plus 70 years, as compared to the 14 years for a Design patent.

The third difference is in the manner in which you establish infringement of your copyright versus infringement of your Design patent.  With copyrights, you must prove copying.  With Design patents, you must only prove substantial similarity.  Even if the defendant never saw your Design before, never copied it, they can still be liable for infringing your Design patent.  Basically, if an ordinary observer finds the allegedly infringing Design to be substantially similar to the Design patent, it’s probably patent infringement, even if they absolutely did not copy.

Copyright FAQs:

What is a copyright?

A copyright is a form of protection provided to the creators of “original works of authorship.”  This includes literary, dramatic, musical, artistic, and other intellectual works. These can be published or unpublished works. And they can be protectable copyrights as long as they’re fixed in a tangible medium. For example, if you sing a song, it’s not copyrightable unless you record it. 

Now, do copyrights provide you with protection or exclusivity over your ideas? No. Copyright laws give you exclusive rights to the expression of your ideas; to the visual, or written, or audio embodiment of your ideas. Copyrights protect the way you express your idea, as opposed to the creative or inventive idea itself. If you publish an article describing how to make your newest invention, a copyright cannot be used to prevent people from making, using, or selling your invention, but it can be used to prevent others from copying your article.

What does a copyright protect?

What kinds of things do copyrights protect? Copyrights do not protect ideas, but instead protect the oral, written, or visual expression of those ideas. These include original literary, dramatic, musical, and artistic works, such as poetry, novels, images, movies, songs, computer software, and architecture. Copyrights do not protect facts, ideas, systems, or methods of operation, although they may protect the way these works are expressed.

What is copyright infringement?

What is copyright infringement? Generally speaking, copyright infringement occurs when a person or entity unlawfully violates the exclusive rights of a copyright owner. So, what are the exclusive rights of a copyright owner? Well, a copyright grants the copyright owner the following six exclusive rights:

  1. The right to reproduce and make copies of an original work;
  2. The right to prepare derivative works based on the original work;
  3. The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
  4. The right to publicly perform the work;
  5. The right to publicly display the work, and
  6. The right to perform sound recordings publicly through digital audio transmission.

If a person or entity does any of these six things with the copyrighted work of another person without permission, it is probably copyright infringement. I say probably because there are a few narrow exceptions to copyright infringement. In other words, there are uses which are considered “fair uses” that allow the use of copyrighted material without permission and without compensation to the copyright owner. Be careful, though. Fair use exceptions are much narrower than people think. In fact, most uses are not considered fair use. 

With this in mind, the safest ways to avoid committing copyright infringement and suffering through all the horrors that go hand-in-hand with copyright infringement litigation are to either secure permission in writing (ideally by license or assignment) or avoid using the copyrighted material of someone else.

So, how do you know if things like images or videos or software or music are owned by someone else? Simple. If you did not create them, they are owned by someone else. 

What is “fair use” of a copyrighted work?

What is the fair use exception to copyright laws? The fair use exception essentially provides limited copying rights to copyrighted material for things like news reporting, parody, criticism-and-commentary, teaching, and research. The fair use exception typically does not apply if your use is commercial in nature. Simply, if you stand to profit from your use, your fair use defense will be much, much harder to make, and the ultimate determination will likely not be fair use but instead, copyright infringement. That said, though, there is never an obvious line separating a case of fair use from a case of infringement.  Even in cases of non-commercial use, the fair use doctrine is complicated. So, speak to your copyright lawyer before you conclude that your use of copyrighted material is fair use.

How long does a US copyright last?

When does a US copyright expire? What is the life of a copyright in the US? Well, a copyrightable work created on or after January 1, 1978, has a term that begins at the moment of its creation and lasts for the author’s life plus an additional 70 years. For a “joint work prepared by two or more authors,” the term lasts for 70 years after the last surviving author’s death. Now, for works made for hire and anonymous works, the duration of the copyright is simply 95 years from first publication or 120 years from creation, whichever is shorter.  But, if at some point the anonymous author’s identity is revealed in copyright office records, the term becomes the author’s life plus 70 years.


What is a non-disclosure agreement (NDA)?

A non-disclosure agreement, or an NDA, is a contract that governs how parties will handle each other’s confidential information. But, importantly, all NDAs are not created equal. Some require the safe keeping of your disclosures, but some don’t. So, it’s not enough to merely have an NDA in place before making a disclosure; you need to have the right NDA in place.

A one-way NDA only protects the disclosures of one party to the agreement. In other words, it either protects my disclosures to you or your disclosures to me, but not both.

A two-way NDA protects all confidential disclosures that each party makes to the other under the agreement.

There’s also something called a 1 ½-way NDA, which is more of a concept than an actual 50% disclosure from one party. With a 1 ½-way NDA, all the confidential disclosures under the agreement of one party are protected by the NDA, but only some of the disclosures under the agreement of the other party are protected.

Why is a non-disclosure agreement (NDA) important?

A non-disclosure agreement, or an NDA, is important because it helps maintain the secrecy of trade secrets and other confidential information that provide a company with a competitive advantage in the marketplace. Once a secret is lost, it can never regain its secret status; worse yet, a competitor can gain free access to that secret. Building business secrets requires research and development, trial and error, years on the road in front of prospects and clients. The creation of assets worthy of keeping secret requires a massive investment of time and money. Companies have been destroyed by the loss of their secrets. And because of that, it’s important to be diligent in protecting secrets. Therefore, an NDA should be used with every disclosure of confidential information; the two should be joined together in an unbreakable bond.

Does a non-disclosure agreement (NDA) prevent the unlawful disclosures of confidential information of material disclosed under the NDA?

No, a non-disclosure agreement (NDA) does not prevent unlawful disclosures; it simply deters unlawful disclosures. If you enter into an NDA and the other party unlawfully discloses your confidential information, you can sue that other party, but you cannot put your secret back in the bottle. And in order to win your lawsuit, you’ll need to prove that a fully executed NDA was in place at the time of your disclosure, that you disclosed it within the disclosure period, that you followed all the disclosure rules as described by the NDA, and that the confidentiality period defined in the NDA had not expired.

Can a non-disclosure agreement (NDA) expire?

Yes, a non-disclosure agreement (NDA) can expire. There are two expiration dates to be aware of: the date the agreement ends and the date the confidentiality obligations end. These are typically separate dates.

The date the agreement ends indicates how long the parties can disclose confidential information under the NDA. This date is negotiable, but whatever it is, once it passes, any new disclosures are not protected. 

A completely separate date is the date the confidentiality obligations end. In other words, this date determines how long one party must maintain the other party’s confidential information in a confidential manner. This date is also negotiable.

What key provisions should a non-disclosure agreement (NDA) include?

Typically, a non-disclosure agreement (NDA) should include the following provisions:

  • A purpose clause which describes the purpose of the NDA;
  • A provision that defines who is responsible to protect the other party’s secrets (now, you might think that both parties have this obligation, but that’s not always the case, because an NDA can be one-way, two-way, or even 1 ½-way);
  • A restriction on subsequent disclosures of the other’s party’s confidential information (often subject to some common exceptions);
  • A provision that relates to the return or destruction of confidential information upon termination of the NDA;
  • A provision that requires that any disclosures made under the NDA must be marked with confidentiality stamps; and
  • A provision requiring that oral disclosures be reduced writing within a reasonable period, then marked as a written record, and delivered to the other party.