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PATENTS & TRADEMARKS

PATENTS
A patent is a legal contract between the federal government and an inventor. The inventor publicly discloses all knowledge related to an invention and, in exchange, the government grants the inventor the right to exclude others from making, using, or selling the invention for a limited time.

Any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent."


3 Main Types of Patents:

UTILITY: most common type covering the definition above; when patents are discussed, it usually means a utility patent

DESIGN: granted to a person who invents "a new, original, and ornamental design for an article of manufacture"; this patent only protects the appearance of the product; a D precedes the patent number

PLANT: granted to a person who "invents or discovers and asexually reproduces any distinct and new variety of plant"; a PP precedes the patent number


4 Conditions required for Patentability:

  1. Useful - the invention must have a function; does not apply to plant patents
  2. Novel - there must be no previous patent or mention in any publication
  3. Nonobvious - the invention must not be easily apparent to someone "skilled in the art"
  4. Full Disclosure
What cannot be patented:
  1. Perpetual motion machines
  2. Abstract ideas
  3. Natural and physical processes, scientific truths, mathematical expressions
  4. Products designed solely to harm another person
  5. Inventions in which public disclosure would be detrimental to national security (e.g. nuclear weapons)

Patents are an overlooked science information resource. It has been estimated that 80% of the information in patents is not found anywhere else.


TRADE SECRETS
An inventor is not required to obtain a patent. They may choose that the benefits of keeping the invention secret outweigh the benefits of a patent.

Advantages

  • property of its owner as long as it remains secret, patents have a limited term (the oldest known trade secret has been kept since 1623)
  • can be exploited on a global basis, patents are only valid in the country in which they were obtained

Disadvantages

  • once they become public, the owner has limited legal remedies to prevent others from making or selling the invention
  • owner takes on the responsibility of protecting it and preventing its disclosure



TRADEMARKS
A trademark is a "word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others." Trademarks are used not only for advertising but also for quality assurance and identification of faulty products.

Trademarks can be:



Word Marks: Hershey's, Is that Your Final Answer?, Captain Jean-Luc Picard

Symbols or Designs: Pringles trademark PostIt trademark



The following types of trademarks are less common.
Color Marks: brown for delivery vehicles (UPS), pink for fiberglass insulation (Owens-Corning)

Configuration Marks: shape of Pizza Hut buildings, BMW grille

Sensory Marks: NBC chimes, MGM lion roar




SERVICE MARKS
Trademarks identify tangible products (clothes, food, automobiles, etc.) while service marks identify services (restaurants, sporting events, insurance, etc.). Some marks can be registered as both. Wyoming's famous Bucking Horse and Rider symbol is registered both as a service mark (for educational services and entertainment/sporting events) and a trademark (for products like sweatshirts, mugs, paper products, etc.).

Examples of service marks:

CFD trademark Woodstock trademark
Reg. 1427863; Registered: Feb. 3, 1987; Date of first use in commerce: Apr. 1961; Owner: Cheyenne Frontier Days, Inc. Reg. 1151271; Registered: Apr. 14, 1981; Date of first use in commerce: Aug. 15, 1969; Owner: Woodstock Ventures, Ltd.

Increasing Levels of Trademark Protection:

Common Law (TM):
No registration or fees, rights result from use of the mark with the product, little public notice, owner may use the TM symbol

State Registration (TM):
registration and small fee, public notice of use, protection varies by state, protection only within the state, owner may use the TM symbol

Federal Registration (®):
more expensive fees and slower process, must use or have a genuine intent-to-use the mark in interstate commerce, presumption of ownership nationwide, exclusive right to use, public notice of use, trademark lasts indefinitely as long as renewal fees are paid and mark still in use; can be deposited with U.S. Customs to prevent importation of goods infringing mark, owner may use the ® symbol only after the mark has been fully registered with the U.S. Patent and Trademark Office.

Some of the reasons a trademark may be refused:

  1. "Likelihood of confusion" with another trademark
  2. Immoral or scandalous
  3. Deceptive (e.g. misrepresents content or geographic region of product)
  4. Disparages or falsely suggests a connection to a person, institution, belief, or national symbol
  5. Mark protected by statute or convention (e.g. the American Red Cross, Olympic rings, NASA insignia)



TRADE NAMES
Trade names are not trademarks. A trade name is "any name used by a person to identify his or her business or vocation". Federal law does not allow trade name registration and not all states offer it (WY does).




WYOMING INVENTORS DATABASE
http://cowgirl.state.wy.us/inventors/

This database created by the Wyoming State Library indexes United States patents issued to inventors within the present-day boundaries of Wyoming from 1867 - Present.

It can be searched by name, city, patent number, date issued, and assignee. Each record provides a link to the full patent on the United States Patent and Trademark Office website.

USEFUL URLS

United States Patent and Trademark Office
http://www.uspto.gov
Wyoming Secretary of State's Bucking Horse and Rider info page
http://soswy.state.wy.us/AdminServices/BHROverview.aspx
Wyoming Patent and Trademark Depository Library
http://will.state.wy.us/sis/ptdl/index.html
Wyoming Inventors Database
http://cowgirl.state.wy.us/inventors/

Karen Kitchens
Wyoming State Library
karen.kitchens@wyo.gov
307-777-7281

No information in this handout should be construed as legal advice. Librarians at the Wyoming State Library can assist with the use of legal search tools and factual information but cannot offer legal opinions or interpretations of law. Consult an intellectual property attorney for legal assistance.

2/2002


Created by Statewide Information Services, Wyoming State Library
Last updated March 2003.

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