A patent is a right granted to an inventor by the federal government, giving the inventor the right, for a limited time, to exclude others from making, using, selling or importing the patented invention. In the United States, there are three types of patents:
For any invention to be patentable, it must be useful, novel, and not obvious to a person who is skilled in the field of the invention.
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.
Generally, U.S. utility and plant patents are valid for a term of 20 years from the date of filing. Design patents are valid for 14 years from the date of filing. A number of variables can affect the actual term of an issued patent. Maintenance fees are required for utility patents, but not for design patents or plant patents.
The above description of the patent process is simplified. Additional information about patents can be found on the U.S. Patent & Trademark Office website, https://www.uspto.gov/patent.
In the United States, there are two mechanisms for protecting plant varieties. The plant patent system, which operates under the U.S. law regarding patents, provides protection for asexually propagated plants (for example, fruit trees). The Plant Variety Protection Act has historically protected only seed-propagated plants (for example, wheat and cotton). As the result of an amendment in 2018, asexually propagated varieties will soon be protectable under the PVP Act. Applications will be accepted once the rulemaking process is complete, which is expected to be in late 2019.
Additional information on the Plant Variety Protection Act can be found on the U.S. Department of Agriculture website, https://www.ams.usda.gov/services/plant-variety-protection.
A trademark is a word, name, symbol or device, or a combination thereof, that serves as an indicator of the source or quality of goods bearing the trademark. Similarly, a service mark serves as an indicator of the source or quality of services. Both are referred to here as trademarks.
Rights in trademarks arise through use in commerce, and can increase in value over time as they gain recognition in the marketplace. Unlike patents, trademarks do not require government registration to exist, but they can be registered at the state and federal level.
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.
Once granted, a federal trademark registration must be maintained to remain valid. Declarations of continued use and fees are due between the fifth and sixth years after grant, between the ninth and tenth years after grant, and every ten years thereafter. So long as the trademark remains in use, the registration can be renewed indefinitely.
The above description of trademarks and trademark registrations is simplified. Additional information about trademarks can be found on the U.S. Patent & Trademark Office website, https://www.uspto.gov/trademark.