Intrinsic Right: The Foundations of the American Patent Law

It was on April 1790 that patents had officially been put into law in the United States, with then-president George Washington signing the bill which laid the foundations of modern intellectual property laws. For the first time in history, the fundamental right of an inventor to profit from his or her own invention had been cemented into law. Income privileges from inventions or innovations once depended entirely on the prerogative of a monarch or a special act of a legislature.

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A person named Samuel Hopkins from Pittsford, Vermont, was the first inventor to be granted a patent, having presented a new apparatus that would improve the production of potash. Thomas Jefferson, himself an inventor, served as the reviewer of the patent. The document also underwent the review of the Secretary of War before obtaining signatures from the Attorney General and, finally, from President Washington. For a small amount, American inventors were given the opportunity to seek patent protection for their inventions, thanks to the provisions of the Act of 1790.

In 1791, while sorting through a dossier of designs, Jefferson realized that the process of reviewing patent applications at the time was way too tedious for busy Cabinet members. The volume of application was beyond what was expected and overwhelmed Jefferson. This led to the reassignment of the patent examining duties to a State Department clerk, until the Patent Office was formed in 1802.

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Patents were originally issued by name and date, but that was later changed to numbers upon the proclamation of the Patent Act of July 4, 1836. Today, there are no less than five million patents that have been issued to Americans and other nationals by the U.S. Patent and Trademark Office.

Irah Donner specializes in the counselling, acquisition, and enforcement of all forms of intellectual property rights. For more about his professional background, follow this link.

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Flouting Conventional Wisdom: When Should Inventors File Patents?

Conventional wisdom states that patents should be obtained immediately. This is to ensure that an invention, or the germ of an invention, is correctly protected.

However, many intellectual property (IP) lawyers are now suggesting that rushing towards a patent application can actually do more harm than good. Most independent inventors fail to realize that patenting should be one of the last steps taken, as the entire invention process can be lengthy. It has happened (though rarely) that an individual applied for a patent while in the process of inventing, and quit midway. The inventor still had to pay for the fees associated with the application and then attend a small hearing to justify release of the patent.

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IP lawyers recommend inventors to clearly document their ideas, from conception to completion, using the inventor’s notebook or disclosure document from the U.S. Patent & Trademark Office (USPTO). After filling out the required data, inventors should strongly consider investing in a third-party market-feasibility study of their invention. This eliminates possibly false (though well-intentioned) reviews from family and friends and analyzes factors such as profitability and safety. These studies usually cost a few hundred dollars.

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It is only after this time that the inventor should apply for patents. The inventor would then have the necessary market information on the viability of the product and would know whether the US $25,000 (or more) fee for a patent is actually worth it, in light of projected income from the invention. It must also be noted that under U.S. law, once the invention is unveiled to the public (that is, once it is sold or even displayed at a trade show), there is a 365-day time limit to file a patent.

Irah Donner is an intellectual property attorney with years of experience in patent protection. Follow this Twitter account for more information on his expertise and practice.

Define ‘published’: The Core Principle Behind Copyright Law

Image source: thebookdesigner.com
Image source: thebookdesigner.com

Copyright law aims to protect the rights of the owner of a piece of intellectual property, in particular, pictorial, graphical, or sculptural works. At the heart of copyright law for intellectual property is the concept of publication; the regulations of copyright law dictates how the copies of the intellectual property are to be distributed and used.

But what defines “published?” First of all, published works have multiple copies, not merely a single copy that is visible to the public. A statue or painting displayed in public is not considered a published work, and neither is a private work of art sold to a private collector.

First of all, published materials are tangible, like all ideas that are subject to copyright law. Formulas, pitches, and variations in typography cannot be copyrighted, but the actual finished work can be. Second, publication entails copies. Several copies of a statue or painting are considered published works whereas single copies of a work displayed in public or sold in private are not considered published copies are subject to vastly different legal regulations.

Visibility itself is not enough to count the work as published. Photographs visible in the public parts of a website count as published whereas those displayed in a more private corner are not. The subsequent copies must be sold in some way; a gallery selling photographs is publishing a work for an author.

Image source: chrisfromcanada.com
Image source: chrisfromcanada.com

Publication status determines many other details, such as the number of copies and necessary materials deposited to register a work. Knowing if a work counts as published influences the course of action necessary to protect its copyright.

Atty. Irah Donner specializes in issues and audits surrounding intellectual property rights. Visit this Facebook page for more updates on copyright and related intellectual property issues.

Do Patents Kill Innovation?

When working on something potentially groundbreaking, investors and scientists must have the protection of their ideas foremost in their minds. Applying for a patent, or the exclusive right granted by a country to an inventor, is one of the critical steps that inventors have to complete no later than a year after a description of their invention has been publicly disclosed or has been made available for commercial use.

Image source: pcworld.com
Image source: pcworld.com

This is also the case for many technology companies where patents are the core of the competitiveness of products and services. With an arsenal of patents at their disposal, tech companies can protect their proprietary products and rule the market. The only recourse of competitors is to develop innovations of their own.

But some argue that certain sectors such as tech are better off without patents. As Kevin Maney put it in this Newsweek article, “patents have turned into a bigger CEO time-waster than golf.” The thousands of dollars spent in filing a patent actually stifle innovation than support it. A paper published in 2013 in The Journal of Economic Perspectives further posits that “there is no empirical evidence that they [patents] serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity.” The biggest move against patenting, however, was Tesla Motors’ decision to give away its patent. As CEO Elon Musk pointed out, protecting Tesla’s patents stifles progress in electric vehicle technology.

“To patent or not to patent”: that is now the question for today’s inventors, scientists, and innovators. While the naysayers may have assembled a solid argument, the fact remains that patents, ever since they were introduced centuries ago, promote not only innovation but also economic growth. And the technologies, products, and services people enjoy today are the result of proprietary ideas that all flourished under the patent system.

Image source: volvoce.com
Image source: volvoce.com

A partner at Stroock & Stroock & Lavan LLP, Irah Donner focuses on the counseling, acquisition, and enforcement of all forms of intellectual property rights, with emphasis on the patenting of computer software and hardware applications. More discussions on the U.S. patent system are featured on this blog.

Protecting online intellectual properties

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Intellectual property (IP) rights extend far more than standard applications, having diversified into the online platform. In the United States, a large number of IP applications are being submitted for online resources. This growth may be attributed to the steady increase of innovations that are being marketed electronically. Intellectual property attorneys are often being sought out for their expertise and advice. These include the development of strategies and compilation of data regarding the steps needed to be taken for an online intellectual property application.

There are three types of IP protection that the United States Patent and Trademark Office (USPTO) offers. All three may be used for an online property.

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Patents: These cover both utility and design applications. As their name suggests, patents are granted to an individual who discovers a new or useful process, machine, article, or composition of matter that significantly improves an existing system. The “utility” of the originating model is taken into account and patents are assigned to the innovation. Patents may also be designated for new, original, and ornamental designs.

Trademarks: This form protects words, names, symbols, sounds, and even colors that distinguish a specific product or service from its competitors. Registration with the USPTO is not required but is highly recommended (particularly for online goods).

Copyrights: This type cover all original works of authorship, including dramatic, artistic, and musical works, both published and unpublished.

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Process application for online IP protection can take as little as a few months to as long as a few years, depending on the type of product or service and its originality from competitors. Covering goods with an IP application offers unique advantages – the least of which is theft protection.

Irah Donner is seasoned intellectual property attorney. For more discussions on intellectual property, follow this Google+ page.

The growth of IP applications in the scientific community

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There has been a growing number of intellectual property (IP) applications among innovators in the scientific community. The United States Patent and Trademark Office (USPTO) reports that over the last few years, many scientists have submitted IP right applications. The majority of these applications are said to be done in response to the ever-growing competitiveness of publicly- and privately-funded research opportunities. Intellectual property attorneys, meanwhile, see this expansion as not only a protective measure but an astute and subtle business procedure.

IP right protection falls under any of three categories: patents, trademarks, or copyrights. Each have their own feature and characteristic, but all three distinguish a specific product or service as the property of an individual. Any mention, use, or application of that product or service after an IP approval is subject to either monetary or legal compensation. The ultimate objective of IP law is to protect any original authorship and assure innovators that their intellectual developments are recognized. Nevertheless, scientists are now using these applications as a means to augment their research capabilities.

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Many companies today are implementing stricter rules for funded research. Pharmaceutical giants are no longer as liberal with their income as they were a few years ago, and often, it is recognized scientists who are given the bulk of research funding. Newly starting scientists usually have to scrape by and start out small (if at all). Having goods that are IP protected (even if they are at the time, experimental) give these companies something to consider. The chances of approval are generally higher.

Nevertheless, it must be noted that IP right applications undergo similar rigorous processes and may take years before approval.

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Understand the proper mechanics of an IP application with the assistance of Irah Donner. For more information, visit this Google+ page.

Intellectual property rights: Monetizing creation and innovation

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Ideas and knowledge have become a vital part of trade. Many products are now being sold because of the information and creativity from which they were made. Enterprises have arisen and flourished as a result of a novel idea that was appreciated and well-received by the market.

Intellectual property rights, meanwhile, have become more important as the value of ideas and knowledge increases in trade. Without certain protections, creators face difficulty profiting from the ideas that they put forward. President Lincoln once said that the patent system, a form of intellectual property right, adds “the fuel of interest to the fire of genius.”

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With intellectual property rules, creators can be granted rights that prevent others from stealing their ideas, creations, designs, and other inventions. Following this, they can also use that right over their idea to negotiate for payment in return for the use of those rights. With the right balance between the interests of creators and the wider public interest, the intellectual property system aims to maintain an environment that encourages creativity and innovation.

Enterprises establishing a sustainable long-term strategy should protect their intellectual property in timely fashion. Without filing for protections afforded by copyrights, patents, trademarks, and the like, companies are exposed to various business risks, including missed funding opportunities and a lack of control over their most valuable assets.

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Irah Donner, a partner at Stroock & Stroock & Lavan LLP, conducts intellectual property (IP) audits and advises companies on strategies for protecting their IP, including preparing and prosecuting patent applications. For more information, subscribe to this Facebook page.