The U.S. Patent System Part 2: What is a Patent, Trademark and Trade Name?

About the U.S. Patent system, what defines a patent, trademark and tradenames and what other rules govern them.

The U.S. Patent System Today

What's a patent? A patent is a grant issued by the U.S. Government giving an inventor the right to exclude all others from making, using, or selling his invention within the U.S., its territories and possessions. It runs for 17 years (except for design patents, which run for 3 1/2, 7, or 14 years) and it cannot be extended except by special act of Congress--a very rare occurrence.

A design patent covers any "new, original, and ornamental design for an article of manufacture." It protects only the appearance of an article, not its structure or utilitarian features. Design patents can be obtained for 3 1/2 years (fee is $10), 7 years ($20), and 14 years ($30); the applicant has the choice of period of time.

A plant patent covers the invention of, or lucky discovery of, any asexually reproduced and distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state. (Asexually means reproduced by means other than seeds, such as by the rootings of cuttings, by layering, budding, grafting, and inarching.) Incidentally, Plant Patent No. 3546 was issued on May 7, 1974, for a hybrid floribunda rose named the "Pat Nixon"--invented by Marie-Louis Meilland of Cap d'Antibes, France. Plant patents run for 17 years.

A trademark is a word, name, symbol, or device, or any combination used to identify a manufacturer's or merchant's goods. For example, "Vaseline." (Some years ago the lawyers for Vaseline wrote the author of this article to protest his use of vaseline instead of Vaseline in Executive's Guide to Effective Speaking and Writing. He's glad now to show them he learned his lesson.) A trademark registration is good for 20 years. Unlike the patent, a trademark can be renewed for terms of 20 years as many times as the applicant desires and for as long as the mark is in use in commerce.

A trade name simply identifies a business, partnership, company, or organization and can NOT under present law be registered. Note the distinction: A trademark identifies a product; a trade name identifies a producer. Interestingly enough, titles of books cannot be copyrighted or registered as trademarks. Could you put out a book titled The People's Almanac? There's nothing in the patent, trademark, or copyright laws to prohibit it. However, you could run afoul of the Common Law Tort of "unfair competition," because when a person or company has built up the reputation of a name or title, others can be restrained from unfairly taking advantage of it.

Can you patent an idea? No. Ideas are unpatentable. Once you've revealed an idea, it becomes public property.

Will the Patent Office prosecute for you? No. Neither the Patent Office nor any other branch of the U.S. Government will prosecute anyone who "steals" your patent or infringes on it. You have to bring civil suit to have the infringer cease and desist or to pay you damages.

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