FREQUENTLY ASKED QUESTIONS
Common Questions From Inventors, Business Owners, Investors, and Creatives.
Our business attorneys are experts in setting up LLCs, corporations, partnerships, and other legal business entities. Fargo Patent & Business Law helps innovative businesses and inventors develop opportunities by turning their great ideas into protected assets.
Should I order a Preliminary Patentability Opinion Search or a Freedom to Operate Search?
A Preliminary Patentability Opinion (PPO) should not be confused with a Freedom To Operate (FTO) search. The PPO search only addresses a limited number of patents and published applications. A PPO search is most relevant as to whether the invention is anticipated by prior patents and is less likely to determine whether an invention is obvious. Having a PPO is not a search to determine whether the invention will infringe on other patents. A FTO is used to determine infringement. In any search it is nearly impossible to determine all relevant prior art and the level of detail is increasingly expensive.
Can I use or sell my invention if I don’t have a patent?
When it comes to utility patents in order to protect your rights, you must apply for some form of patent right no later than one year after use. The federal code 35 USC 102 details the various types of prior art that could prohibit you from obtaining a patent. Prior art includes public use, sale, printed publication, patents, patent applications, and more. If you have used your invention in such a manner that makes your use prior art, you should have an application filed in less than one year so that you can disqualify the prior art. Both foreign and domestic forms of prior art can keep you from getting a patent. Due to the fact that there are so many sources of prior art, it is nearly impossible to determine if there is nothing out there that will affect your patent rights.
I filed a provisional application and my time is almost expired, what should I do?
Contact us immediately so that your time does not expire. When you file a provisional patent you have one year to use it as a priority document. There are certain other things you can do to extend that time to 14 months, but it is very expensive. If you have an active provisional application, we can file a nonprovisional which takes advantage of your prior filing date. This is very important if one of your competitors has invented a similar invention after which you filed your provisional application. In the event your provisional application has already expired and you are not quite ready yet to file a nonprovisional, we can help you file another.
What can I do with a patent?
A utility patent is a right granted by the USPTO for a term of 20 years from the original filing date. A design patent has a term of 14 years from the issue date. Patents allow the owner to preclude others from using the invention which is claimed in the patent. A patent is not self executing and must be defended by the owner. This means that owning and maintaining a patent can be a lot of effort. If you have a good invention, it is worth it.
Where can I find more resources?
The U.S. Patent and Trademark Office has a variety of great resources to help you learn about patents and trademarks.
USPTO Faq: https://www.uspto.gov/help/patent-help
Manual of Patent Examining Procedure (MPEP): https://www.uspto.gov/web/offices/pac/mpep/index.html
Patents and Trademark Resource Centers (PTRC): https://www.uspto.gov/learning-and-resources/support-centers/patent-and-trademark-resource-centers-ptrcs
Can I use my idea prior to being granted a patent?
As soon as you submit a provisional patent your invention is “patent pending.” Alternatively as soon as you file a nonprovisional patent application, you also are patent pending. You are patent pending up until an actual patent is granted. As soon as an application is filed, you effectively have some intellectual property rights established. The patent prosecution process will help define the rights you hold, but it is possible to lay claim to the content in your original patent application.
How long does it take to get a trademark?
To obtain a trademark from the United States Patent and Trademark Office it typically takes 12-18 months. To learn more about trademarks and how long they take to get, click here.
Can someone steal a name or logo if I don’t trademark it?
Whether you file a trademark application or not, you still have common law trademark rights for names or logos you use in commerce. Common law trademark rights give your rights in the geographic region in which you do commerce. Someone else could technically gain trademark rights in a geographic region different from the one in which you do commerce. It is rare that someone directly copies a brand or logo for use in another region, but it is possible if a trademark is not registered with the USPTO.
What is a Fractional In-house General Counsel or a Fraction Chief Legal Officer?
A fractional officer is typically a part-time or on demand position that a company hires a subject matter expert to fill. Examples of fractional officers currently in use by business include CFOs, COOs, CTOs, CIOs, CLOs, General Counsels, and so forth. Fractional Chief Legal Officers can provide a valuable service to a company at a fraction of the cost as to what it would take to hire a full time General Counsel or Chief Legal Officer.
What is the patent classification system?
Patents are generally classified using two different systems. The systems used to classify patents include the International Patent Classification (IPC) and the Cooperative Patent Classification (CPC). Both systems are similar in how they look and operate. These systems help patent attorneys identify relevant prior art. Prior art is information which is in existence at the time of filing a patent application. This prior art, if not properly accounted for, can cause a patent to become invalid. The United States Patent and Trademark Office (USPTO) is moving away from the IPC and adopting the CPC.
What is a copyright?
Copyrights are works of art fixed to a tangible medium. Copyrights include paintings, movies, artwork, writings, certain software, sculptures, songs, and so forth. Art that is copyrighted is protected from being copied regardless of the medium to which it is being copied. Copyrights last the life of the author plus an additional 70 years.
Click here to learn more about copyright law.