ISA PAT TRDMRK COPYRGHT TRD SECRT-2008 PATENTS TRADEMARKS COPYRIGHTS and TRADE SECRETS What Automation Professionals Manufacturers and Business Owners Need to Know.pdf

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1、PATENTS, TRADEMARKS,COPYRIGHTS,and TRADE SECRETSWhat Automation Professionals, Manufacturers,and Business Owners Need to KnowPATENTS, TRADEMARKS,COPYRIGHTS,and TRADE SECRETSWhat Automation Professionals, Manufacturers,and Business Owners Need to KnowBy Wendy Buskop, J.D.Managing Patent AttorneyThe B

2、uskop Law GroupHouston, TexasThis book is in honor of:Jacqueline Buskop, who has two patent applications filed for her greatideas;Charles Breuninger, who has had many inventions since the two partepoxy mix in the parallel syringes for fixing fiberglass cracks in boats andthe syringes with oil for ea

3、sy and tidy delivery of oil for his model trains;Virginia Breuninger, who invented many clever fixes for things and is aterrific mother;Evan Bauman, who holds two patents and didnt even try to invent any-thing;Frank Johnston, who always thought I could write;Kay Johnston, who believes in books; Ruth

4、 Gernhart and Sarah Gernhart for their constant support; and, John Powell, and Hunter, Spencer and Trevor for their nurturing supportof Deborah Powell.orn14upSpecial ThanksThe author wishes to thank tax attorney, James Mulder, and patent attorney,Nelson Blish for assistance in the substantive writin

5、g of this book, and JacobMattis for proofreading this book.Table Of ContentsAbout the Author 9Introduction 11Chapter 1 What Is Intellectual Property? 13Chapter 2 The Goal of Intellectual Property 15Inventions and Examples of IPChapter 3 Examples of Discoveries 17“Inventions” and Ownership of Inventi

6、onsChapter 4 What Makes an Invention Patentable? 21Chapter 5 Examples of Works of Authorship 23“Copyrightable Work”Chapter 6 Examples of Trademarks 25Chapter 7 Examples of Trade Secrets and Secrecy 29AgreementsChapter 8 Five Financial Reasons to Identify and 33Register Intellectual PropertyChapter 9

7、 Three Basic Licensing Fees 41Chapter 10 Two Techniques to Identify Assets Also 45Known as “Inventions”Chapter 11 Creating an Inventor Awareness Program 53Chapter 12 Creating Inventor ward Programs 57Chapter 13 United States Utility Patent Application 63Process an ReChapter 14 Provisional Patent App

8、lications 77A Low Stress StepChapter 15 Five Strategies to Consider 79Chapter 16 How Long Does Intellectual Property Last? 83Chapter 17 United States Federal Trademark 85Application ProcessChapter 18 Trademark Rejections and Overcoming Them 89Chapter 19 Trademark Classes One Filing Does NOT 93Cover

9、AllChapter 20 Checklist of Activities to Identify Names, 107Logos, and SlogansChapter 21 Proper use of Trademark and 111Registered Chapter 22 Benefits of Federal Trademarks 113Chapter 23 Trademark Watching Service 115Chapter 24 Take the Trademark Quiz 117Chapter 25 Six Types of Copyrightable Works 1

10、19Chapter 26 Fair Use Exemptions to Copyright Infringement 125Chapter 27 Ten Easy Steps to Identify 127Secrets That Provide a Commercial Advantage to a BusinessChapter 28 International Intellectual Property 129Helpful Resources 131Index 133T eh9About the AuthorMs. Buskop has written and/or supervise

11、d thousands ofpatent cases including technologies for NASA contrac-tors and technologies used on the Space Shuttle. Sincedrafting her first case in 1980, she has worked on varioustechnologies, successfully attained more than $1.3 million of trade secret licenses during a one year period for an indiv

12、idual client. She has negotiated sales andlicense of technologies from $1.5 million for a single heat treating and welding methodology to single projects valued at over $100 million.Her experience includes preparing and negotiating patent licenses, know-how licenses, software licenses, facilities en

13、gineering, design contracts,technology development agreements, and trademark applications. She hascreated and implemented numerous programs for Fortune 500 companies. Ms. Buskop is licensed to practice before the United States Patent Office,the U.S. Supreme Court, and the states of Texas and Michiga

14、n. She hasreceived her Juris Doctorate from Franklin Pierce Law Center, NewHampshire and her B.A. and M.A.L.S. from Wesleyan University,Middletown, CT.Ms. Buskop is a published author and speaks regularly on related intellec-tual property topics. She offers frequent seminars on such topics asIntrodu

15、ction to Intellectual Property, Intellectual Property Protection forNon-Specialists, Patents and Trademarks, and Introduction to Managing aPatent Portfolio. The Buskop Law Group is located in Houston, Texas. Wendy Buskop, J.D. 1011IntroductionThis book is designed to provide descriptions of each of

16、the basic formsof Intellectual Property in a somewhat fun and entertaining format.Intellectual Property law is constantly changing with new theories anddefenses developed by various federal, district, and state courts, as well asthe legislature. Whether youre a business owner, automation professiona

17、l,or manufacturer, this book provides a how-to approach and covers thebasics about protecting your investments with patents, trademarks, tradesecrets, and copyrights.Intellectual Property is protected by the federal laws for patents and copy-rights by the federal and state laws for trademarks, and t

18、he state laws ontrade secrets.Intended to act as a primer, this book explains the mechanics of the vari-ous types of Intellectual Property within the context of the system thatprovides these rights to individuals and companies from a United Statesoriginating viewpoint.Easy-to-read guidelines will em

19、phasize how to protect your ideas andinventions as assets or understand better how to respect the IntellectualProperty rights of others. Equipment, tools, software, chemical formula-tions, connectors, controllers, sensors, pumps, engines, their components,and other related devices are likely the int

20、ellectual property of the indi-vidual, company, or group who created them.Most important, you will learn how to obtain and use patents, trademarks,copyrights, and maintain trade secrets by identifying those assets asIntellectual Property. This handy reference guide contains useful tips and practical

21、 insight onobtaining and maintaining property. It also highlights the use, sale, protec-tion, and transfer of Intellectual Property for those who have identified orhave pending patents, marks, copyrights, and trade secrets. Numerous sce-narios illustrate what can happen when an individual, company,

22、group, orother business form does not take the proper steps to protect the property.PATENTS, TRADEMARKS, COPYRIGHTS, AND TRADE SECRETS1213CHAPTER ONEWhat Is IntellectualProperty?Intellectual Property is a right, like a property right, to discoveries andworks of authorship that was granted in the Uni

23、ted States Constitutionin Article 1, Section 8.The United States ConstitutionArticle 1, Section 8 (the patent and copyright clause) reads:The Congress shall have power To promote the Progress ofScience and useful Arts, by securing for limited Times toAuthors and inventors the exclusive Right to thei

24、r respectiveWritings and Discoveries.Intellectual Property is the right to exclude others from making, using,selling or offering to sell a discovery (also known as “an invention”) ora work of authorship (also known as “a copyrightable work”).An exclusionary rightExclusion is a right that in and of i

25、tself does not entitle the owner todo the protected activity. Surprisingly, this means an owner of a patentcan stop others from using the owners Intellectual Property, but inusing the property, the owner may still infringe someone elses property.As an owner of Intellectual Property, the owner should

26、 1) rememberthe owner has enforcement rights, but also 2) that the owner is notguaranteed that their property does not infringe someone elses right. Owners often search and stay updated on the property rights of others,which are similar to their rights.The definition of Intellectual Property in the

27、Constitution of the UnitedStates has been expanded since 1789 and now includes trademarks andtrade secrets. The protection of inventions and works of authorshipremains a federal protection, trademarks can be federal trademarks or statetrademarks, and trade secrets are a matter of the laws of the ind

28、ividualstates. PATENTS, TRADEMARKS, COPYRIGHTS, AND TRADE SECRETS14Congress intended that Intellectual Property promote innovation andprogress. Intellectual Property drove the industrial revolution.Intellectual Property drives Microsoftand other large companies.Intellectual Property protects an owne

29、rs legitimate and reasonable rightto the owners inventions, ideas, and goodwill by giving a limited monop-oly on the creation for a set period of time. However, the exception istrademarks, in which a right will continue forever if the trademark is con-tinually used by the owner.Intellectual Property

30、 is assignable and transferableIntellectual Property, like real estate, can be bought, sold, assigned, trans-ferred, licensed, bequeathed escrowed, placed into trusts, and subjected tomost of the same transfers permitted for real estate.Intellectual Property, like real estate, can be owned by one pe

31、rson, by acompany, by two or more individuals, by two or more businesses, by bothindividuals and a business, or by other entities that are created by law.Intellectual Property is generally “positive stuff” the ideas, new logos,new concepts, and new works by authors that enrich our lives. Intellectua

32、l Property rights were created so that the results of effort, bothin time and money, spent by the creators or a current owner, could not becopied and used by someone else without permission (in the form of a feepayment, typically).CHAPTER TWOThe Goal of IntellectualProperty Innovationand Examples of

33、 IP1516InventionsAn invention can be a method for metering or measuring (e.g., a remoteterminal unit).An invention can be a gadget for doing a task (e.g., a hydraulic wrench).An invention can be a system for doing a task (e.g., a wind farm withsolar collectors for generating power).An invention can

34、be a business method that does something new (e.g., amethod to manage change in an organization that acquired another com-pany).An invention can be a process for manufacturing something (e.g., amethod for making car parts using smart pallets that communicate withclient devices using two networks and

35、 two simultaneous gateways).An invention can be a method for using an existing device in a new way,providing a new benefit (e.g., a method for measuring sales of an organiza-tion that can be used to measure customer traffic through a store).An invention can be a composition (e.g., an arthritis formu

36、lation for peo-ple to put on their joints to minimize pain, or a type of paint, or a coatingthat reduces static electricity shocks).CHAPTER THREEExamples of Discoveries“Inventions” and“Ownership of Inventions”17PATENTS, TRADEMARKS, COPYRIGHTS, AND TRADE SECRETS18An invention can be a computer progra

37、m (e.g., computer instructionsthat help you compute annual taxes).How to obtain rights to an invention?The right to an invention is obtained by the inventor undertaking somespecific steps.An inventor must:1) Describe the invention in a patent application,2) File the patent application with the feder

38、al government, and3) Pay the filing fee.If a business organization or a person that is not the inventor desires toown an invention, a written assignment for the invention must occurfrom the inventor to the new owner.Written assignments transferring ownership must be recorded at the U.S.Patent and Tr

39、ademark Office. In the U.S., all inventions are owned by their respective inventors unlessthe inventor has transferred the invention to a company or other individ-ual with a written employment agreement or similar agreement, like asecrecy agreement, or by signing an assignment document used by theU.

40、S. Patent and Trademark Office.Steps to register the invention at the United States Patent andTrademark OfficeTo register an invention as a patent, the inventor or a company owningthe technology must:1)Make a filing at the United States Patent and TrademarkOffice (USPTO) either on-line at www.USPTO.

41、gov or bymail to the USPTO offices in Alexandria, Virginia, and pro-vide the following:a. The names of each inventor of the discovery;b. A description of the discovery with at least one examplein enough detail to enable the invention to be “practicedby someone skilled in the art to which the inventi

42、on pertains”;c. The filing fee to the government, which at the time ofthis writing could be a small entity fee of less than $600or a large entity fee of over $1000. A “large entity” is anorganization having more than 500 employees; andd. In the case of a utility filing, an oath or declaration aboutt

43、he inventor and drawings, if needed, to describe theinvention. 2) Respond to the Office Action (one or more rejections) fromthe USPTO after examination;3) Receive a Notice of Allowance from the USPTO and respondto it; and4) Pay the patent issuance fee to the USPTO.Generally, a response to a rejectio

44、n will cost anywhere from $3,000 to$6,000 in attorney fees after the initial filing.Following through from filing until a patent issues, is a process that cantake from two to eight years. The issued patent is then valid for 20 years from the date of filing, if main-tenance fees are paid three times

45、during the term of the patent.19Examples of Discoveries “Inventions” and “Ownership of Inventions”20To be patentable, an invention must be:1) Useful,2) New or Novel, and 3) Non-ObviousThese terms are defined by Section 35 of the United States Code (U.S.C.).An invention must meet all three criteria t

46、o be patentable.UsefulTo be useful, an invention must meet the requirements of 35 U.S.C.Section 101, and the invention must “do” something. The invention canbe a method for doing business to be useful. Example of useful inventions include software, meters, motors, modelingdevices, improvements to us

47、eful devices, such as a safety device for apower saw, use of chaos theory in packing, new ways of assembling windtowers, and the like.New or NovelTo be new or novel, an invention must meet the requirements of 35U.S.C. Section 102that the invention was not in public use, disclosedto members of the pu

48、blic, commercially used, or offered for sale to thepublic, more than one year prior to the filing date of the invention.CHAPTER FOURWhat Makes anInvention Patentable?21Examples of activities that have prevented filing a patent on the exactinvention disclosed because it was no longer “novel” include:

49、1) Describing the invention in an abstract submitted to a profes-sional association (e.g., at an ISA meeting) more than oneyear before the filing date;2) Sending out a two-paragraph press release, then filing theinvention more than one year after the press release;3) Inviting the press to view a demonstration of the unit, andthen trying to file on the unit more than one year later;4) Having a prototype at a trade show, like the annual ISAEXPO, and then trying to patent the prototype more than oneyear later; and5) Making a proposal to a client, and then trying to fi