IP FAQ

The patent process is often begun by conducting a patentability search to determine if the invention is in fact novel and non-obvious. A search is not required, but is a valuable tool that can be used to help determine whether a patent application is likely to be successful.

A U.S. patent is obtained by filing an application that includes a detailed written description of the invention, along with drawings if appropriate, with the U.S. Patent & Trademark Office. A declaration signed by the inventor(s) and government filing fees are also required.

In the case of a plant patent application, the written description includes a detailed botanical description of the new plant, including quantified measurements and color descriptions that refer to a recognized color chart, such as the Royal Horticultural Society Colour Chart. Color photographs of the whole plant, as well as its leaves, flowers and fruits are also included in most plant patent applications.

After undergoing a pre-examination review to confirm that minimum filing requirements have been met, the application is assigned to an examiner with expertise in the subject area. The examiner will conduct a search, and then correspond with the applicant or the applicant’s attorney regarding the application (called “prosecution”). If prosecution is successful, the application will be allowed and a patent granted upon payment of required fees.

Advantages of registration include notice to the public of the trademark claim, a legal presumption of ownership, and the opportunity to achieve “incontestable” status after use in commerce for five years. Additionally, in the case of an application for a federal trademark, an applicant can file for registration before the mark is in use in commerce, allowing for confirmation of the availability of the trademark prior to investing in advertising and packaging.

A federal trademark registration is obtained by filing an application with the U.S. Patent & Trademark Office.  The application is assigned to an examiner who will conduct a search for similar registered trademarks that might be confusingly similar to the applicant’s trademark. The examiner will also evaluate whether the mark can function as a trademark. Words or phrases that are generic for the goods or services, or merely descriptive of them, cannot serve as trademarks and will be refused registration. The examiner will correspond with the applicant or the applicant’s attorney (called “prosecution” of the application), and if the mark is ultimately found to be capable of serving as a trademark or service mark, and not likely to be confused with an earlier registered mark, it will advance to allowance or registration, depending on the type of registration filed.