June 2025
Patent attorney and Indiana Super Lawyer® Charles Meyer kindly treated us to an update of his 2019 presentation on intellectual property: patents, trademarks, and copyrights.
It’s not unusual for 60-80% of a company’s property to be intangible. So if you are starting a business, take the advice of Shark Tank: create a business plan and protect the company’s intellectual property.
Patents
If you want a patent, the most important thing to remember is: file a patent application within one year of the date your invention is first disclosed to the public. If you wait any longer, you cannot get a patent for that invention.
The two most prevalent kinds of patents are utility patents (for new, nonobvious, and useful things or methods) and design patents (for the ornamentation of manufactured things; ex. Coca Cola bottle design). Patents for biological plants are also available.
There are two routes to getting a utility patent. An inventor taking the direct route files only a nonprovisional application for a patent. This is like walking unannounced into a restaurant and being seated. Only by showing up can you get dinner. Only by showing up at the patent office by filing a nonprovisional application can you get a patent.
An inventor taking the indirect route files one or more provisional patent application(s) within one year of each other and then files a nonprovisional patent application. This is like making a dinner reservation and then walking into a restaurant and being seated ahead of customers who didn’t make a reservation.
The indirect route costs more but offers the advantage of time. Time to develop an invention in stages and extra time to dip your toe in the market (by marketing your invention) to see if it feels right for your invention before filing a nonprovisional application. Within one year of filing the first provisional application, the inventor files a nonprovisional application that incorporates all of the provisional applications and their filing dates. This advantage of time is helpful because our patent system awards a patent to the first inventor to file a patent application.
Tips
• File a patent application before asking companies to buy or license your invention. Most companies won’t sign a nondisclosure agreement until they know the details of your invention and decide they are interested in obtaining it. Your patent application prevents theft of your invention and shows that you believe in the commercial value of your invention.
• Unless your patent claims are too specific, plan on initial rejection of some patent claims by the patent office. Interacting with the patent examiner will result in mutual agreement on a valid set of claims.
• When your patent issues, mark the patent number on what you sell. This lets you recover damages from an infringer beginning on the date of first infringement. If your items are unmarked, you can recover damages only from the date you tell the infringer to stop infringing.
Trademarks
Branding helps a company because it creates a unique identity and perception for your company, product, or service in the minds of your customers. A trademark / service mark protects your branding.
A mark can be anything that is sensate and nonfunctional: a sight (word [Xerox], design [Red Cross emblem], packaging shape [Coca Cola bottle]), sound (NBC chimes), smell (Play-Doh), touch (Khvanchkara wine packaging), and taste (no examples yet).
Using a mark gives you a legal right to that mark where you are using it, as long as you are not infringing. For example, you might be using a mark in Indiana, Michigan, and Ohio. Registering a mark with the U.S. Patent and Trademark Office (USPTO) extends your geographical range to the whole United States of America. Filing an intent-to-use trademark application lets you reserve a trademark that you are not using now but plan to use in 3 to 4 years. Discontinuing use of your trademark for 3 years abandons your right to that trademark.
Tips
• Identify an unregistered (common rights) trademark by TM and a registered trademark by 🄬.
• Using a trademark (eg, Velcro) as the name of a physical structure (eg, hook and loop) can result in loss of the trademark. Take a look at this short creative video.
Copyrights
Publicly expressing an idea in physical form (eg, poetry, video, song, computer software, etc.) gives you an exclusive right to that particular expression but not to the idea itself. You can make that right more evident by labeling your work: ⓒ copyright, your name, date. Registering your work with the U.S. Copyright Office lets you sue to recover monetary damages from an infringer.
Tips
• Copyrights do not apply to works created by artificial intelligence (AI). Our legal system has not yet decided how to protect a work that is created by both a human being and artificial intelligence. You can protect how you train your AI-powered answer engine and search tool by keeping it a trade secret.
• Copyright trolls abound. Don’t use a photograph you take from the internet unless it is clearly marked as freely available to the public. Take photos from databases such as Wikimedia Commons, Public Domain Image Archive, Unsplash, Pexels, and Pixabay.
Thank you, Mr. Meyer, for another very interesting and helpful presentation!