How To Know When To File For Either A Patent, A Trademark, Or A Copyright

Intellectual Property, comprising patents, trademarks, and copyrights are just like any other bag of tools. Some tools are made for gardening. Other tools are made for repair work. And other tools are made for your computer. Each tool is specifically designed to achieve certain function. These specific functions can also make them less effective when they are re-purposed for other tasks. Intellectual Property, which consists of Patent law, Trademark law, Copyright Law, Trade secret law, and other sui generis laws are also more effective with some things and less effective with others. Knowing the strengths, weaknesses and other ancillary issues will enable you to know how to best employ them for your specific needs.

The distinguishing characteristic which makes Patents strong and enforceable is that it is based upon a strict liability standard. Due to this harsh standard, good faith mistakes, ignorance of the existence of the patent, fair use exceptions are irrelevant. The only point of concern is whether the competing product or service has incorporated every limitation of the claims of that patent.

Patent law can also be useful to prevent reverse engineering. Although many people believe the opposite, that insignificant tweaks can get around a patent, the fact is that as long as the claims are drafted with ample scope and foresight reverse engineering should not be an issue. Again, the salient question is whether the claims have been infringed.

Having said all that, the primary weakness of patents is time. Patent applications usually spend years collecting dust before they are examined. Moreover, they enjoy shorter terms of protection as opposed to their IP counterparts.

As it pertains to time, Trademarks do not share the same problem because, theoretically, Trademarks can last forever. Insofar as the trademark is employed continuously, consistently, and properly, they will remain in force. For instance, the trademark Lowenbrau is 600 years old.

Both Copyrights and Trademarks are beset by limiting issues such as fair use. Both areas of law are encumbered by various exceptions which are out of the scope of this article. In addition, when it comes to software, Copyright law does not have the teeth to prevent reverse engineering in the case of software source code or object code.

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Los Angeles Patent Attorney

By: SBBARCA

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