Read on about patents and trademarks...
Definition - Patent (Microsoft Encarta '96 Encyclopedia)
Patent, in law, the abbreviated term for letters patent, in its most general sense a document issued by a government conferring some special right or privilege. In the U.S. the term is now restricted principally to patents for inventions granted under federal statute. The specific attributes of novelty of the item for which a patent is sought are called claims. A patent gives the inventor the exclusive privilege of using a certain process or of making, using, and selling a specific product or device for a specified period of time.
History
In America, the first patents for inventions were issued in 1641 by the colonial governments. The first U.S. patent laws were enacted by Congress in 1790 under the authority of Article 1, Section 8, of the Constitution. The Patent Act of 1790 was administered by a commission composed of the secretary of state, the secretary of war, and the attorney general of the U.S. The basis of the present patent system is the act of July 4, 1836. Many legislative enactments have modified the original patent law. The most important of these is the act of July 8, 1870, and the subsequent act of July 19, 1952, which revised and codified the patent laws and which, with amendments, constitute the patent law in force at the present time. In 1849 the Patent Office became a part of the Department of the Interior; it was transferred by executive order of the president to the Department of Commerce in 1925. On January 2, 1975, the name was changed to Patent and Trademark Office.
Purpose
In the U.S. the law provides that a patent may be granted to any person for the invention or discovery of any new and useful art, machine, manufacture, or composition of matter or any new and useful improvement thereto; for the invention of asexual reproduction of any distinct and new variety of plant, other than a tuber-propagated plant; or for any new, original, and ornamental design for an article of manufacture. In 1980, such patent coverage was also extended to the products of genetic engineering, including seeds, plants, and cultivars, as well as to new genetic engineering methods themselves. A patent is granted only on the filing of an application complete in all respects and on payment of the fees, and only after a determination has been made that the disclosure is complete and the invention new and useful.
The patent is issued in the name of the U.S. under the seal of the Patent and Trademark Office. It consists of a short title, together with a printed copy of the specifications and claims, a patent number, and a grant to the patentee and his or her heirs and assignees for a period of 17 years. In the case of design patents, the period of the patent is 14 years. Every patent must be applied for by the actual inventor, and if two or more parties make an invention jointly they must apply jointly. If the inventor dies or becomes insane before making application, a legal representative or guardian is permitted to do so. Patents may be transferred from one party to another; the written assignment is recorded in the Patent and Trademark Office.
Once a patent is granted, it is out of the jurisdiction of the Patent and Trademark Office, and matters of infringement, the scope of the patent, or any other questions that arise out of the grant are within the jurisdiction of the U.S. district courts. Infringement consists of wrongfully making, using, or selling a patented invention. The law requires that patented articles be marked with the patent number; failure to do so will prevent the recovery of damages for infringement, unless the patent owner can prove that due notice of such infringement was given to the person charged with infringing the patent, who continued after such notice to make or sell the patented product. The remedy for an infringement is an action for damages or for a restraining injunction, or both. It is customary for the manufacturer of an item for which a patent is sought to mark the product "patent pending" or "patent applied for"; such notice to the public affords an opportunity to others who may claim to have invented the same products to institute proceedings, called interference proceedings, in the Patent and Trademark Office to determine the originality of the claim of the applicant.
In general, a patent affords protection against infringement only within the jurisdiction of the government by which it is issued, and it is therefore necessary to take out a patent in every country in which protection is desired. Patent statutes have been enacted in most nations; the most important international treaty is the International Convention for the Protection of Industrial Property (1883; since revised).
Copies of U.S. patents may be purchased from the Patent and Trademark Office in Washington, D.C.; photostatic copies of foreign patents may also be obtained on payment of the required fees, as nearly complete sets of the patents of many foreign countries are available in the Patent and Trademark Office library. A copyright is not a patent, because it applies to literary and other works.
Trademark - Definition from Microsoft's Encarta96 Encyclopedia
Trademark, any symbol, such as a word, number, picture, or design, used by manufacturers or merchants to identify their own goods and distinguish them from goods made or sold by others. Thus, a trademark identifies the source of a product and fixes responsibility for its quality. If customers like the goods, the trademark enables them to know what to purchase in the future; if they dislike the product, they will avoid goods with that trademark.
The name of a type of product cannot be a trademark, because every maker of that product is free to use its name. Sony, for example, is a well-known trademark for televisions, radios, and audio equipment, but no one can have trademark rights to the word television or radio. On several occasions, however, words intended by manufacturers to be used as trademarks for new products were instead used by customers to name the products; such words then lost their legal status as trademarks. Examples include aspirin, cellophane, and escalator.
History
Makers of goods throughout the ages have put their names on things they produced. Some producers devised symbols or pictures to identify and distinguish their products. Items as diverse as medieval swords and ancient Chinese pottery have been imprinted with identifying symbols to enable potential purchasers to trace the origin and determine the quality of the objects. Before the 20th century, trademarks were usually symbols or pictures rather than words, since most people could not read.
As trade increased in the 19th century, legal rights of trademark owners were recognized, and laws prevented other sellers from using a similar mark that could confuse customers as to the source of products. In 1883 a group of nations created the Paris Convention, an international treaty organization that required member countries to recognize trademark rights of foreign producers. The Paris Convention has been revised several times; most nations are now members. The U.S. Congress first passed a law in 1870 permitting the federal registration of trademarks. The current federal trademark registration law in the U.S., the Lanham Act, was enacted in 1946.
U.S. Trademark Law
Under the common law in each state, a seller who uses any symbol as a trademark acquires the legal right to prevent other sellers from using a similar mark. Many states register trademarks to maintain a public record and allow others to search the record before choosing and using a new trademark. In the federal Lanham Act, Congress has provided a nationwide register of marks for sellers who participate in interstate commerce. Although a trademark owner can rely on state common-law rights by merely using the mark, federal registration provides valuable extra protection. For this reason, many sellers federally register their trademarks.
In the U.S., a symbol cannot be registered as a trademark until goods or services identified by the mark have actually been sold. Thus, a person cannot select a trademark and register it before use. The law in most nations, however, allows a mark to be registered before actual use, although many countries require use on goods within a certain number of years after registration.
Trademarks are federally registered in the U.S. Patent and Trademark Office of the Department of Commerce. When a seller applies for registration, the office will examine the application to see if the mark meets the conditions of federal law. The most important condition is that the trademark is not confusingly similar to one previously registered or used in the U.S. On approval of the application, the trademark is published in the official gazette to enable any objections to be heard in an opposition proceeding. If a registration is granted, it lasts for 20 years and may be renewed at 20-year intervals for as long as the trademark is still in use. Once a federal registration has been obtained, the owner may give notice by using the symbol R next to the trademark.
Any seller who uses a mark so similar to a registered trademark that it is likely to cause customer confusion is an infringer and can be sued in a state or federal court. The court compares the conflicting trademarks as to similarity in sound, sight, and meaning. It is not necessary that the parties sell directly competing goods for likelihood of confusion to occur; for example, use of the trademark Yale on flashlights was held to be an infringement of the same trademark on locks. Unlike patent or copyright infringement, trademark infringement is defined solely by the likely confusion of customers. The usual remedy after a court trial finding trademark infringement is an injunction prohibiting the infringer from using its mark.
A trademark is often a valuable property of a seller or manufacturer, because it is the symbol of the company's goodwill and of its products and services. Thus, a trademark can be sold or assigned when a company and its assets are sold. It can also be licensed to others to use as long as the owner exercises control over the quality of goods or services supplied by the licensee; most fast-food outlets, such as Kentucky Fried Chicken, or other franchised businesses are licensed to use the trademark of the parent company (see Franchise).
Contributed by:
J. Thomas McCarthy
Copyright Definition - Microsoft Encarta 96 Encyclopedia
Copyright, body of legal rights that protect creative works from being reproduced, performed, or disseminated by others without permission. The owner of copyright has the exclusive right to reproduce a protected work; to prepare derivative works that only slightly change the protected work; to sell or lend copies of the protected work to the public; to perform protected works in public for profit; and to display copyrighted works publicly. These basic exclusive rights of copyright owners are subject to exceptions depending on the type of work and the type of use made by others.
The term work used in copyright law refers to any original creation of authorship produced in a tangible medium. Thus, works that can be copyrighted include literary pieces, musical compositions, dramatic selections, dances, photographs, drawings, paintings, sculpture, diagrams, advertisements, maps, motion pictures, radio and television programs, sound recordings, and-by special legislation passed by the Congress of the United States in 1980-computer software programs.
Copyright does not protect the idea or concept; it only protects the way in which an author has expressed an idea or concept. If, for example, a scientist publishes an article explaining a new process for making a medicine, the copyright prevents others from substantially copying the article, but it does not prevent anyone from using the process described to prepare the medicine. In order to protect the process, the scientist must obtain a patent.
History of Copyright
The first real copyright law, enacted in 1710 by the British Parliament, was the Statute of Anne. This law forbade the unauthorized printing, reprinting, or importing of books for a limited number of years.
In the United States, the founding fathers recognized the need to encourage creativity by protecting authors. They placed in the Constitution of the United States a provision giving Congress the power "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" (Art. I, Sect. 8). This provision gave the federal government the power to enact copyright and patent statutes. In 1790, Congress passed the first U.S. copyright law. Since then, the copyright statutes have been expanded and changed by Congress many times. A major revision of U.S. law was made in the 1909 Copyright Act, which remained the basic framework for protection until January 1, 1978, when the Copyright Act of 1976 went into effect. The 1976 act, which is the legal basis for copyright protection today, made substantial and important changes in U.S. law.
Copyright in the United States
The 1976 Copyright Act established a single system of federal statutory protection for all eligible works, both published and unpublished. For works created after January 1, 1978, copyright becomes the property of the author the moment the work is created and lasts for the author's life plus 50 years. When a work is created by an employee in the normal course of a job, however, the copyright becomes the property of the employer and lasts for 75 years from publication or 100 years from creation, whichever is shorter. For works created before 1978, the old act provided that the copyright endured for 28 years and might be extended for another 28 years, for a maximum of 56 years from publication. The new act "stretched" the term of copyrights existing on January 1, 1978, so that they would last for about 75 years from publication.
Notice
Although copyright becomes effective on creation of a work, it is lost unless a prescribed copyright notice is placed on all publicly distributed copies. This notice consists either of the word Copyright, the abbreviation Copr., or the symbol © accompanied by the name of the owner and the year of first publication (for example, © John Doe 1982). In most printed books the copyright notice appears on the reverse side of the title page. The use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office. A similar notice bearing the symbol ® (for example, ® 1982 Doe Record Company) is required to protect sound recordings such as phonograph records and tapes.
A work is not fully protected until a copyright claim has been registered with the Copyright Office in Washington, D.C. To register, the author must fill out the application, pay a fee, and send two complete copies of a published work or recording, which will be placed in the Library of Congress. The sooner the claim to copyright is registered, the more remedies the author may have in any litigation.
Licensing
Copyright can be sold or licensed to others. Licenses of copyrights are normally granted in written contracts agreed to by all parties involved. For example, an author of a novel can license one publisher to print the work in hardbound copies, another publisher to produce paperback copies, and a motion-picture company to make a movie based on the novel. A sale or license of copyright made after January 1, 1978, can be terminated by the author (or by the author's family) 35 years after the sale or license. The purpose of allowing such a termination is to permit an author to obtain more financial reward if the work remains commercially valuable over a long period of time. For the sale or license made before 1978, the author has a similar right of termination 56 years from the copyright date.
The 1976 law sets up conditions for reproduction of copies by libraries and archives and for transmission of audiovisual and other programs and forbids unauthorized duplication of sound recordings. It provides for royalty payments on recorded music, on public performance of sound recordings by coin-operated phonographs, and on transmission of some television programs. A radio station that broadcasts a recording of copyrighted music is "performing" the work publicly and for profit and must be licensed to do so. In 1984, however, the Supreme Court of the United States ruled that noncommercial use of videocassette recorders does not violate copyright law.
Infringement
Copyright infringement is any violation of the exclusive rights mentioned above-for example, making an unauthorized copy of a copyrighted book. Infringement does not necessarily constitute word-for-word reproduction; "substantial similarity" may also be infringement.
Generally, copyright infringements are dealt with in civil lawsuits in federal court. If infringement is proved, the copyright owner has several remedies available. The court may order an injunction against future infringement; the destruction of infringing copies; reimbursement for any financial loss incurred by the copyright owner; transfer of profits made from the sale of infringing copies; and payment of fixed damages (usually between $250 and $10,000) for each work infringed, as well as court costs and attorney's fees. In a few cases, a criminal penalty of imprisonment and/or a fine can be imposed for knowingly infringing the copyright for profit.
Fair Use
An exception to the rule of copyright infringement is the concept known as fair use, which permits the reproduction of small amounts of copyrighted material when the copying will have little effect on the value of the original work. Examples of fair use include the quotation of excerpts from a book, poem, or play in a critical review for purposes of illustration or comment; quotation of short passages in a scholarly or technical book to illustrate or clarify the author's observations; use in a parody of some of the work being parodied; summary of a speech or article, with brief quotations, in a news report; and reproduction by a teacher or student of a small part of a work to illustrate a lesson. Because works produced and published by the U.S. government cannot be copyrighted, material from the many publications put out by the U.S. Government Printing Office may be reproduced without fear of infringement.
Advances in Technology
Technological development has produced and will continue to produce new and different ways to store information in smaller and smaller spaces, retrievable by electronic methods. Congress, in passing the 1976 Copyright Act, recognized that it could not foresee all the new methods of fixing or storing information. Accordingly, it broadly defined the category of copyrightable material to include all "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Thus, an author who types a story on a computer keyboard, which stores it on a tape or disc in computer memory, has "fixed" the work on a "copy" sufficient for copyright protection.
International Copyright
Almost every nation has some form of copyright protection for authors and artists. Few, however, require the formalities necessary under U.S. law, such as marking published copies with a formal copyright notice and registering the claim with the Copyright Office.
The United States is a member of the Universal Copyright Convention (UCC), an international treaty organization in effect since 1955, designed to eliminate discrimination against foreigners in copyright protection. More than 70 nations belong to the UCC. Every member nation must give foreign works that meet UCC requirements the same copyright protection as that nation gives to domestic works and authors. An American who wishes to secure copyright protection in the United States and in UCC member nations at the same time can do so by marking all published copies with a copyright notice that satisfies the provisions of both the UCC treaty and domestic U.S. law. This notice includes the symbol ©, the name of the copyright owner, and the year of first publication. Although no such thing as an "international copyright" exists, it is easy for an author to obtain copyright protection in many nations.
Several other international conventions also provide copyright protection. As of March 1, 1989, the United States became a member of the Berne Convention, which protects without formalities any works first published in a member nation. The Buenos Aires Convention, a multilateral treaty of North and South American nations including the United States, requires a statement such as "All Rights Reserved" to be printed in the copyright notice. In February 1995 the United States and China signed an agreement to prevent companies in China from illegally manufacturing items, such as compact discs and computer software, in violation of American copyrights. The United States estimated that this piracy was causing American businesses to lose $1 billion a year. To stop copyright violations, China agreed to establish task forces and increase the power of customs officials.
Contributed by:
J. Thomas McCarthy