DO I NEED A PATENT?
You can't just sell an idea for a product. Unless the idea/product is in the public domain, a patent can be necessary to prove the seller owns the product/idea they wish to sell. In other words, why should someone buy something from you if you don't have the title or deed saying you own the invention?
Design and utility patents give the owner a monopoly on making, using, and selling an invention in the USA. Design patents have a $165 minimum government filing fee with a 14 year life, and cover ornamental appearance (i.e. jewelry). Changing appearance by 10-15% can get around a design patent.
Utility patents have a minimum government filing fee of $375 with a 20 year life, and cover both function (i.e. how it works) and appearance. Inventions include mechanical devices (door knobs), electronics (circuitry), chemical recipes/formulas, and computer software. Provisional applications are not patents, but do allow one to use the patent pending status for a minimum $75 government fee. Provisional applications must be converted into a utility application within one year to obtain a patent. "Patent Pending" can only be used if one files a provisional, utility, or design application and it has not been abandoned.
Other fees necessary during the patent issuance and post issuance maintenance process add thousands of dollars to the cost. Patents must be applied for within one year of their public disclosure or it becomes too late and a patent will not be available.
Preliminary internet and library patent searches (UCF Library) can be performed for free. However, one cannot rely solely on their results, because their databases are limited. Professional searches done at the United States Patent Office in Washington, D.C. can be necessary to give a better determination of what is patentable. The USPTO recommends using a registered patent attorney or a patent agent in obtaining patent protection.
DO I NEED A FEDERAL TRADEMARK?
Businesses using or intending to use a name nationwide on their products or services should look into a federal trademark. A United States trademark (which covers goods) and service mark (which covers services) is any word, name, phrase, symbol, logo, design, and sound, which identifies and distinguishes the source of the goods or services from another party's goods/services. A trademark registered by the USPTO is a title/deed recognizing nationwide ownership.
Federal trademarks have a $335 government filing fee per class of goods/services (clothing, paper goods, etc.) Other legal and government fees are assessed during the issuance and maintenance process and add to the cost of obtaining a trademark or service mark. Payment of 6 year continuous use affidavit and fees and, thereafter ten year renewal fees and use affidavits, can extend a trademark or service mark's life indefinitely.
Trademarks can be registered by anyone. Trademark owners have the right to prevent another from using any word, name, symbol, or device likely to cause confusion with the trademark owner's mark. Marks being merely descriptive of the goods or services will not be allowed registration. Courts generally recognize federal trademarks to be supreme over state trademarks and over Internet domain names.
A trademark search is a must. UCF and the Internet offer free trademark searching. However, one cannot rely on free searches because databases are limited. Professional searches should be performed. Anyone claiming ownership of a mark can use "TM" (for a trademark) or "SM" (for a service mark) with the mark. The symbol "®" cannot be used until the mark is registered (approved by the USPTO). The USPTO requires the owner or their attorney to apply.
DO I NEED A COPYRIGHT?
A registered copyright is another type of deed/title identifying the ownership of another form of intellectual property. Copyright registration is through the United States Library of Congress for $30 per work. Copyrights protect fixed tangible original artistic expressions such as literary works, musical works including accompanying words, dramatic works including accompanying music, pantomimes, choreographic works, pictorial, graphic and sculptural works, motion pictures, sound recordings, architectural works and computer program source code. The works can be published or unpublished.
Copyrights do not protect ideas, concepts, or inventions. Nor do copyrights protect titles, names, short phrases and slogans. Works that do not contain original authorship are not eligible for protection. Calendars, height and weight charts, tape measures and rulers, lists and tables taken from public documents are not copyrightable.
A copyright life owned in the author's name is the life of the author plus 70 years. Copyrights made under a work for hire agreement (i.e. employment agreement, listing the copyright as owned by a business or company) have a life of 95 years from publication of the work or 120 years from creation of the work, whichever is shorter.
Copyright protection begins when the work is created. Registration is not needed to identify a work as being copyrighted. Authors can identify their works to be "copyrighted" with the symbol ©, the year of publication and the name of the copyright owner on the work. Registration with the Library of Congress is required in order for the owner to seek federal remedies. Copyright applications can be submitted to the United States Library of Congress by the author, the owner, or an authorized agent of the owner. An experienced intellectual property attorney can better determine whether a work should be copyrighted. The copyright office will search their records concerning copyright status and ownership for a fee.
HOW DO I PROTECT A TRADE SECRET?
Trade secret protection does not cover information that is no longer secret such as information in journals, conferences, announcements, sales, issued patents, registered copyrights, and by reverse engineering.
Protection of trade secrets can be acquired through confidentiality/nondisclosure agreements that restrict one from releasing and disseminating information. Employee agreements can include restricting the dissemination of proprietary information and reasonable non competition clauses. Businesses can set up internal programs that physically secure the business/plants, control physical access, lock away proprietary information for selected access, and require visitors to sign confidentiality/nondisclosure agreements.
Businesses should consider burning/shredding trash such as documents, CDs, tapes, and typewriter ribbons. Proprietary documents, drawings, blueprints, schematics, software, discs, tapes, and manuals should be marked as confidential, proprietary, trade secret information, where any copying, use or disclosure without written permission is prohibited and may result in civil and criminal penalties. Shrink-wrap licenses on software products can restrict reverse engineering with statements that "customer shall not reverse assemble/compile the program in whole or in part."
Trade secret theft includes stealing, concealing, taking by fraud or deception, copying, duplicating, sketching, downloading, altering, destroying, transmitting, sending, communicating, conveying, disseminating, etc. Civil actions can be brought for misappropriation conversion, and breach of confidentiality/nondisclosure agreements and non competition clauses and allow for money damages, punitive damages, attorney fees and possible injunctive relief. Penalties under Federal law can include fines and imprisonment. Property gained or used by misappropriation such as a computer that transmits stolen trade secrets can be forfeited. Experienced attorneys should be used to evaluate trade secrets.
END NOTE
Most foreign governments offer their own versions of patent, trademark and copyright protection.