The Burton Law Firm, P.C. has over 17 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com
or David Torok at david@burton-lawfirm.com.
Intellectual Property Law
- What is intellectual property?
Generally, patents, trademarks and copyrights.
- What does a patent do?
Patents protect inventions, and improvements to existing inventions.
- What is a trade mark and service mark?
Trademarks protect any word, name, symbol, or device, or any combination, used, or intended to be
used in commerce to identify and distinguish the goods of one manufacturer or seller from goods
manufactured or sold by others, and to indicate the source of the goods. Service marks protect any
word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to
identify and distinguish the services of one provider from services provided by others, and to indicate
the source of the services.
- What does a copyright do?
Copyrights protect literary, artistic, and musical works. For general information, publications and
other copyright related topics, you may visit their Web site at http://www.copyright.gov. Copyrights
information can be obtained from the U.S. Copyright Office, Library of Congress, Washington, DC
20559 or you may call 202 707-3000 or 202 707-6737 (TTY).
- What is the difference between a utility patent and a design patent?
A utility patent may be granted to anyone who invents or discovers any new and useful process,
machine, article of manufacture, compositions of matter, or any new useful improvement thereof.
A design patent may be granted to anyone who invents a new, original, and ornamental design for
an article of manufacture.
- What is the USPTO?
United States Patent and Trademark Office. The email address is http://www.uspto.gov.
- What is a disclosure document?
A disclosure document is not a patent application, and does not permit the term "Patent Pending"
to be applied in connection with the invention.
- What is a provisional application?
A provisional application is a patent application, which establishes an official United States patent
application filing date for the invention and permits the term "Patent Pending" to be applied in
connection with the invention.
- Do I need a patent attorney or agent to file my patent application?
The U.S. Patent and Trademark Office (USPTO) recommends that all prospective applicants retain
the services of a registered patent attorney or patent agent to prepare and prosecute their applications.
- How do I apply for a patent?
Inventors may apply for one of two types of patent applications: (1) A non-provisional application,
which begins the examination process and may lead to a patent and (2) A provisional application,
which establishes a filing date but does not begin the examination process.
- How does one file protest on patents that are pending?
Protests by a member of the public against pending applications will be referred to the examiner
having charge of the subject matter involved. A protest specifically identifying the application to
which the protest is directed will be entered in the application file if: (1) The protest is submitted
prior to the publication of the application or the mailing of a notice of allowance under rule 1.3 1 1,
whichever occurs first; and (2) The protest is either served upon the applicant in accordance with rule
1.248, or filed with the Office in duplicate in the event service is not possible.
- How long does it take for a patent application to be processed?
Per the USPTO, currently, the average patent application pendency is approximately 25 months.
Applications received in the U.S. Patent and Trademark Office are numbered in sequential order and
the applicant will be informed within eight weeks of the application number and official filing date
if filed in paper.
- How long does patent protection last?
For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which
begins with the date of the grant and usually ends 20 years from the date you first applied for the
patent subject to the payment of appropriate maintenance fees. Design patents last 14 years from the
date you are granted the patent.
- What are the benefits of a federal trademark registration?
Federal trademark registration has several benefits: Constructive notice nationwide of the trademark
onnrr's claim: Evidence of ownership of the trademark; Jurisdiction of federal courts may be
invoked.; Registration can be used as a basis for obtaining registration in foreign countries; and
Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign
goods.
- What is the difference between TM and the R within the circle ®?
Use of the TM and SM symbols may be governed by local, state, or foreign laws and the laws of a
pertinent jurisdiction to identify the marks that a party claims rights to. The federal registration
symbol, the R enclosed within a circle, may be used once the mark is actually registered in the
USPTO. Even though an application is pending, the registration symbol may not be used before the
mark has actually become registered. The federal registration symbol should only be used on goods
or services that are the subject of the federal trademark registration.
- What constitutes interstate commerce?
For goods, "interstate commerce" involves sending the goods across state lines with the mark
displayed on the goods or the packaging for the goods. With services, "Interstate commerce"
involves offering a service to those in another state or rendering a service that affects interstate
commerce (e.g. restaurants, gas stations, hotels, etc.).
- How do I get a trademark?
You can fill out an application online, check it for completeness, and file it over the Internet using
the Trademark Electronic Application System (TEAS), at http://www.uspto.gov/teas/index.html.
- How long does a trademark registration last?
For a trademark registration to remain valid, an Affidavit of Use must be filed: (1) between the fifth
and sixth year following registration, and (2) within the year before the end of every ten-year period
after the date of registration. The registrant may file the affidavit within a grace period of six months
after the end of the sixth or tenth year, with payment of an additional fee. The registrant must also
file a renewal application within the year before the expiration date of a registration, or within a
grace period of six months after the expiration date, with payment of an additional fee. Assuming
that affidavit of use is timely filed, registrations granted prior to November 16, 1989 have a 20-year
term, and registrations granted on or after November 16, 1989 have a 10-year term. This is also true
for the renewal periods; renewals granted prior to November 16, 1989 have a 20-year term, and
renewals granted on or after November 16, 1989 have a 10-year term.
- How long does it take to register a trademark?
It is difficult to predict exactly how long it will take an application to mature into a registration,
because there are so many factors that can affect the process. Generally, an applicant will receive a
filing receipt approximately three weeks after filing, which will include the serial number of the
application. All future correspondence with the USPTO must include this serial number. You should
receive a response from the Office within six to seven months from filing the application. However,
the total time for an application to be processed may be anywhere from almost a year to several
years, depending on the basis for filing, and the legal issues which may arise in the examination of
the application.
- How can I get the status on my pending trademark application?
Once you receive a filing receipt containing the serial number of your application, you may check
the status of your application through the Trademark Applications and Registrations Retrieval
(TARR) database at http://tarr.uspto.gov/ or by calling the Trademark Assistance Center at 57 1-272-
9250 or 800-786-9199.
- Do I need an attorney to file my trademark application?
An applicant is responsible for observing and complying with all substantive and procedural issues
and requirements whether or not represented by an attorney. Applicants are not required to hire an
attorney for assistance with trademark filings, although it may be desirable to employ an attorney
who is familiar with trademark matters. The names of attorneys who specialize in trademark law may
be found in the telephone yellow pages, or by contacting a local bar association.
- Is a trademark search necessary?
It is advisable to conduct a search of the office records before filing an application.
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