Q: Can I obtain an exclusive
right to a trademark if I am not yet going to use it?
A: Yes, but you must show a good
faith intent to use it in the near future. Under the Lanham Act you can
file an Intent-To-Use (ITU) trademark application.
Q: Which
trademarks can be registered and which cannot?
A: Only as to federal trademark registration: A
trademark cannot be registered if it belongs to another or is very similar to
another trademark. Registration of trademarks which are misleading
is prohibited. The USPTO can deny registration of trademarks containing
geographical terms, last names, or those deemed amoral or scandalous.
Q: Can a scientific discovery
be patented?
A: No. Scientific discoveries, laws of nature, natural occurrences,
materials and living organisms created without human participation, mathematical
formulae, abstract ideas (as opposed to technical solutions of particular
problems), and computer programs cannot get patent protection in the United
States.
Q: Is there a danger of disclosure and/or unlawful use of the invention
while a patent application is being examined by the USPTO?
A: This requires a two part answer.
First, as to the danger of disclosure: all applications filed with the
USPTO on and after November 29, 2000 are subject to mandatory publication 18 months
after the application is filed or the earliest priority date if not counted
from the date of filing. The inventor, however, can opt out of this
rule by declaring that the invention is not going to be patented abroad.
The USPTO keeps applications not subject to publication in the strictest
confidence, whether it is too early to publish them or whether the inventor
opted out. Disclosure to an outsider is highly unlikely if not impossible.
Second, regarding illegal use as a result of disclosure: if they are
proven, they are considered a violation of patent holder's rights.
After the patent is issued the patent holder may seek injunctive relief and
compensation of damages.
Q: How does the USPTO determine
the invention priority date?
A: Under American patent law the process of inventing begins with
conception of an invention and ends with reduction it to practice. This
means that the invention either exists in tangible form or that a complete
patent application is duly filed with the US
or a foreign Patent Office.
The
United States follows the "first to invent" principle: priority will
be awarded to the inventor who either (a) first reduced the invention to
practice or (b) first conceived the invention and since then diligently worked
on reduction to practice without abandoning it up until the time of filing the
application.
Q: How long does copyright last
in the USA?
A: In 1998, President Clinton signed a law extending the copyright term
in the United States by 20 years. This is
known as the Sonny Bono Copyright Term Extension.
For works created in 1978 and after, the copyright term is the life of the
author plus 70 years. If there are several authors, the 70 years are
counted from the date of death of the last author.
In case of anonymous works or works published under a pen-name, and the authors
names are not disclosed, or of works made "for hire" the copyright
term will be either the lesser of 95 years from the first publication or 120
years from the creation of the work in question. And so on, and so forth.
Q: How much of a work can I use without infringing upon its copyright?
A: First find out whether the work in question is still enjoying
copyright protection. If not, it is deemed to have fallen into
public domain, and you can use all of it.
If it is not in public domain, the US
copyright law has something called "fair use" doctrine. It
allows limited and usually non-commercial use of small portions of copyrighted
work for quotations, critique, research, commentary, parody and news
reporting. What is not specified is how large or small those portions may
be, how many words, minutes or notes one can use, or what percentage of the
entire work can be used without giving rise to infringement claim. Each
situation depends on its own particular circumstances; the courts
determine these matters on a case-by-case basis.
Q: Must I use an attorney to
register copyrights?
A: No, there is no such requirement. However, in many cases it is
desirable. Although obtaining a copyright registration is often a
straight-forward procedure, a registrant's mistake during that process may lead
to loss of a valuable copyright. This is especially true with regard to
registration of software copyrights. The copyright owner of the dBase
programming language nearly lost all rights due to an innocent clerical omission
to list certain information on the application.