Patents

Reasonable Royalty Damages For Patent Infringement

Damages for Patent Infringement If you have a patent that you believe is being infringed, you may have questions about recoverable damages. You may be asking what are the damages for patent infringement, and how to prove damages. Or if you are being accused of infringement, you may be asking what is the value of this patent. Our experienced patent litigation attorneys will explain. For assistance, please don’t hesitate to send us a message or call (832) 485-3580 today. The Federal Circuits opinion in Power Integrations, Inc. v. Fairchild Semiconductor International, Inc., decided July 3, 2018, provides a good analysis of damages for patent infringement. The Statute 35 U.S.C. Section 284 provides that the court shall award the claimant damages adequate to compensate for the patent infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer. Appointment Power Integrations is another case that considers apportionment between the infringing and non-infringing features of the accused product, and application of the entire market value rule. The Federal Circuit stated As a substantive matter, it is the value of what was taken that measures a reasonable royalty and it is only the patented technology that is taken from the owner, so the value to be determined is only the value that the infringing features contribute to the value of an accused product. When the infringing device has multiple components, the Court stated: [w]e have articulated that, where multi-component products are accused of infringement, the royalty base should not be larger than the smallest salable unit embodying the patented invention. Yet, this may not end the inquiry in deciding the appropriate royalty base. In Power Integrations, the Court stated that even if the smallest salable unit is used, the patent owner must still establish what portion is attributable to the patented technology when the smallest salable unit itself contains several non-infringing features. Entire Market Value Rule In Power Integrations, the Court described the entire market value rule (EMVR) as a demanding alternative to our general rule of apportionment. The EMVR allows patent owners to recover damages based on the value of the entire apparatus containing multiple features when the patented feature constitutes the basis for the consumer demand. However, there are strict requirements that limit the EMVR: If the product has other valuable features that also contribute to driving consumer demand patented or unpatented- then the damages for the patent infringement must be apportioned to reflect only the value of the patented feature. This is so whenever the claimed feature does not define the entirety of the commercial product. In some circumstances, for example, where the other features are simply generic and/or conventional and hence of little distinguishing character, it may be appropriate to use the entire value of the product because the patented feature accounts for almost all of the value of the product as a whole. Although this sounds helpful to patent owners, the Federal Circuit cautioned that the EMVR is appropriate only when the patented feature is the sole driver of customer demand or substantially creates the value of the component parts. If the accused infringer provides evidence that its product has other valuable features, the patent owner has the burden to establish those features are not relevant to consumer choice those other features did not influence purchasing decisions. The Court’s opinion provides a good summary of the evidence (and argument) on these issues and is certainly worth reading to consider how a potential case will measure up. Contact a Patent Litigation Attorney If you have a patent that you believe is being infringed or if someone is alleging that you owe damages for patent infringement, please contact our patent litigation lawyers by filling out our short form or calling (832) 485-3580 today.

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What Is Contingency-Fee Patent Litigation?

Contingency-fee litigation at Polasek Law Firm serves to aid clients in pursuing patent litigation that they might otherwise not be able to afford. For many small businesses and companies, patent litigation is too expensive to pursue. Contingency-fee litigation is a cost-effective means for small businesses and companies to receive skilled counsel and defend their rights in intellectual property lawsuits. A contingency fee agreement for patent litigation means you do not have to pay your lawyer for his time unless your case settles, or you prevail in court. For corporate clients, this provides a company with the opportunity to use its money to grow its business and still have the ability to enforce its intellectual property.  For individuals with a claim that has strong merit but who lack the resources to litigate a patent infringement case, it provides an avenue for representation that may otherwise not be available.  This type of representation does not charge an hourly rate to clients. Instead, contingency-fee patent litigation attorneys receive a percentage of the final judgment awarded to their clients. The attorney-client agreement specifies what percentage of the final judgment the attorney receives as payment. Contingency-fee patent litigation attorneys receive payment only if they win the case for their client. Therefore, like the client, your contingency-fee patent litigation attorney has an incentive to win the case. This type of representation showcases an attorney’s ability to provide effective and efficient representation. A contingency-fee patent litigation attorney assesses the merits of your case by reviewing the following questions: Is there a valid cause of action?  Are there sufficient damages? Are the damages collectible from the defendant? How much attorney time and costs will it require to complete the lawsuit? After considering these factors, an attorney may take your case on a contingency-fee-basis only if the attorney believes in the likely success of the case. For assistance, please send us a message or call (832) 485-3580 today. Benefits of a Contingency-Fee Patent Litigation Attorney  Contingency-fee patent litigation offers many benefits to clients. For example, a qualified contingency-fee patent litigation attorney evaluates your case’s goals and how best to achieve those results. Lower Out-of-Pocket Costs  Patent litigation lawsuits are costly and time-consuming. Most individuals and small businesses don’t have the cash flow to continue paying a firm the high costs associated with an intellectual property lawsuit. A contingency-fee patent litigation agreement does away with the worry of how to pay attorney fees upfront. However, the client generally must pay for expenses related to litigation costs, such as filing fees and travel. If your contingency-fee patent litigation attorney fails to obtain a judgment or settlement, you pay nothing as a fee to the attorney.  An Incentive to Settle When Proper The nature of contingency-fee patent litigation representation incentivizes both client and attorney to act with joint interests. This incentive pushes both client and attorney to conclude the lawsuit in the most favorable manner possible. Therefore, when it makes sense to settle a case, both parties will be incentivized. Additionally, when it makes sense to pursue litigation through trial, both parties have the same goal. A contingency-fee patent litigation agreement spreads the risk of litigation to both client and attorney. Contingency-fee patent litigation pays an attorney only if their client wins their case. By contrast, the typical hourly agreement between client and attorney requires the client to assume all risks, regardless of the outcome.   A contingency-fee patent litigation attorney takes these types of cases based on the probability of success. An attorney should always diligently defend their client. However, in traditional hourly agreements, an attorney may not always believe in a case’s merits. If an attorney takes your case on contingency, they are staking their own time and resources on the case. Therefore, you can trust that your case has merit and that your attorney isn’t simply racking up fees on a lost cause. Time and Cost Control  Some law firms behave in a manner to maximize billable hours in a lawsuit. In contingency-fee patent litigation lawsuits, a firm has no incentive to bill unnecessary hours or costs to a client. This drives the firm to work more efficiently toward the resolution of your case. Your attorney will be incentivized to avoid expensive delays through excessive pleadings, depositions, or conferences. Areas of Intellectual Property Handled on a Contingency-Fee Basis Contingency-fee arrangements are possible in all intellectual property litigation. Consult with a contingency-fee patent litigation attorney to review the elements of your case and determine the suitability of a contingency fee agreement. Patents A patent affords the patent holder the right to exclude others from making, using, or selling an invention. Patent protection lasts twenty years. There are three different types of patents: Design patents, which protect the ornamental design of an invention;  Utility patents, which protect the use or operation of a new machine, process or system; and  Plant patents, which protect new types of engineered plants. There are five criteria to meet to qualify for a patent. These include the following: The invention must cover patentable subject matter;  The invention must have utility; The invention must be novel; The invention must be non-obvious; and  There must be no disclosure of the invention before the patent application. Anyone who unlawfully makes, sells, or uses a product covered by a claim of an existing patent may be liable for infringement. If you believe someone has infringed your patent, a contingency-fee patent litigation attorney will review the validity of your patent and its existing claims to determine its merits.  Copyrights Copyright owners have the exclusive right to reproduce, distribute, and license their copyright. If anyone infringes on this right, the author has a claim for copyright infringement. Damages for copyright infringement lawsuits include profits made by infringing the copyright and damages for past infringement.  Copyright protections extend to the following: Music, literary, and artistic works; Pictures, graphics, and sculptural works;  Movies; Sound recordings; Computer software; and Architectural works. Copyright protections extend only to expressions, not to ideas, methods of operations, or concepts. Copyrights […]

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Trademark

Statement of Use Trademark Overview and Fees

If you have recently filed an “intent to use” application for a mark or logo in connection with your business, it may be time to file a Statement of Use.  But what exactly is a statement of use? Do I need one for my business? And will I have to pay a statement of use fee?  These are questions that many people have, but fortunately, you don’t have to navigate this process on your own. The Polasek Law Firm (TPLF) is dedicated to the practice of intellectual property law, and can help you answer these questions and many more. Contact or call our trademark application attorneys today at (832) 485-3580 to see how TPLF can help you protect your business and brand.  What Is a Statement of Use (SOU)? A Statement of Use for trademark purposes is a form you must file with the United States Patent and Trademark Office (USPTO) as part of the Intent to Use (ITU) trademark application process. Specifically, an SOU verifies to the USPTO that the applicant is actually using the applied-for trademark in commerce.  Importantly, your SOU must include a specimen, or real-world evidence, of your trademark being used in connection with your goods or services in the marketplace. A proper specimen will depend on your mark, how you are using it and the classes that you designate in your trademark application.  A few examples of proper specimens might include:  Website printouts or other advertising materials showing the trademark being used in connection with your business’s services;   A product container or packaging with the applied-for trademark affixed as a label; or Photos of your trademark being used on the products you sell.  Being able to show that your business is actually using the applied-for mark in commerce is imperative to a successful SOU. Thus, make sure that your specimen, and the rest of your SOU form, meets all the requirements.  Statement of Use Filing Fee Before submitting your form, don’t forget that there are some Statement of Use fee requirements to be aware of. The Statement of Use filing fee is $200 per class if filing by paper. However, the Statement of Use filing fee is only $100 if filing electronically through the Trademark Electronic Application System (TEAS).  Thus, while you can file by paper, electronic filing through TEAS is generally the preferred method.  Do I Need a Statement of Use for Trademark Filings? If you file an ITU application, you will have to file a SOU at some point to obtain your trademark registration. A Statement of Use must be filed within six months of the date of issuance of the Notice of Allowance (NOA) from the USPTO. If you are not yet using your mark in commerce and are not ready to file your SOU, you may file a request for an extension. However, make sure to keep careful records of these important dates and deadlines. Failure to file either your extension request or SOU on time can result in an abandoned application.  Assuming all other requirements have been met, once your SOU form is filed and approved, you will receive your registration.  Need Help with Your Statement of Use?  TPLF can help you with your Statement of Use and all other steps in the trademark registration process.  Of course, you can register a trademark on your own—there is no requirement that you must have an attorney. Nevertheless, hiring an experienced trademark attorney who is familiar with the requirements and nuances of the process can be a fantastic benefit and can avoid costly mistakes.   If you have questions about how to validly register your trademark, TPLF is ready to help. With decades of experience handling intellectual property cases of all kinds, TPLF has the knowledge and resources necessary to provide excellent representation to its clients.  Contact or call (832) 485-3580 to reach our team today to schedule a free consultation and see what TPLF can do for you.

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Trademark

Top Tips About Trademarking a Logo

A logo is a design, a stylized text, or both. It represents your business or product in a manner that is distinctive enough to set it apart from others. The Nike ”swoosh” symbol and the uniquely stylized lettering of the Coca-Cola trademark are two examples of internationally successful logos. Without the exclusive trademark rights attached to these logos, however, they would be commercially useless. Here are a few tips from our trademark registration attorneys to make a great logo work for your business or product. For assistance, please send us a message or call (832) 485-3580 today. Focus on Uniqueness from the Design Stage The advantage of a logo over plain text is that a logo can make your business name stand out. It can incorporate a familiar image, such as a camel, or it can rely on stylized text. Some of the more successful logos merge both graphics and text. You need to use your logo the same way every time to effectively identify your product. However you present your logo, you must ensure that it is not easy to confuse with someone else’s. To receive protection, a logo must not create a “likelihood of confusion” to another logo in the market. Thoroughly Research Your Logo to Confirm Its Uniqueness This task is a lot more difficult than it may appear at first. Sure, it is relatively easy to confirm the uniqueness of your logo’s text, if it has any. All you have to do is type your text into a search bar. The universally accepted alphabetical order will do the rest of the work for you by displaying the closest matches. But what about the design elements? The US Patent and Trademark Office (USPTO), to its credit, has created an alternate “alphabetical order” for hundreds of design elements that may appear in a logo. It assigns codes to various design elements, which allow you to compare various design elements to determine how similar a given logo is to yours.  How a Trademark Lawyer Can Help With hundreds of design elements, the USPTO design element  “alphabet” is unwieldy at best. Even if you manage to locate a close match, the question remains—exactly how close is close enough to be “confusingly similar”? Under these circumstances it is difficult to avoid the need to exercise the legal judgment that a lawyer can provide.  Register With the USPTO: How to Trademark a Logo Nationwide Logo registration at the federal level can be a tricky process. Nevertheless, getting a logo trademarked should be a priority for your business. A trademark lawyer should be able to provide you with some individualized trademarking tips that will help you maximize the value of your trademark.  You file your trademark application with the USPTO. The Trademark Examiner will review the application and may issue an office action that will need a response. You can use your trademark in commerce without registering it with the USPTO.  However, federal registration does offer the following benefits, among others: You enjoy nationwide protection, instead of the local protection that state and/or common law offers; You can seek “incontestable” status after five years of registration; The USPTO will refuse to register confusingly similar competitors; Federal registration can serve as a basis for international registration; You can seek protection against the import of infringing products; and You can seek increased damages against counterfeiters. All things considered, it is much easier to enforce a registered trademark than a common law trademark.  Aggressively Enforce Your Rights A full arsenal of intellectual property rights will do you very little good if you don’t enforce your rights. Authorities such as US Customs and Border Protections will help you enforce some of your trademark rights. Most of the burden of enforcement, however, will fall on you and your trademark lawyer. You will need to continue monitoring the market, both domestically and internationally, to make sure that no one is infringing your trademark rights. If you discover infringement, you will need to execute an enforcement plan, which might include anything from a simple “cease and desist” letter to a full-blown trademark infringement lawsuit.  Make It Happen The experienced intellectual property lawyers at The Polasek Law Firm can assist you in protecting your brand.  Although Texas common law can provide your logo with a degree of protection, USPTO registration is the best way to effectively protect trademarks nationwide.  If you’re interested in filing an application for a trademark, call The Polasek Law Firm at (832) 485-3580 or contact us online to set up a free consultation. We look forward to hearing from you!

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Trademark

Do I Need a Lawyer to Register a Trademark?

Do you need a lawyer to apply for a trademark registration? Well, that depends on who you are. A trademark lawyer is a legal necessity for a so-called “foreign applicant,” for example. But given the complexities of the trademark application process, hiring an attorney is also a very good idea for anyone else seeking trademark protection. Benefits of Federal Registration You can obtain common law trademark rights simply by creating a distinctive mark and using it in commerce. You can also file a state trademark application with state governments. The Secretary of State of Texas, for example, will register your trademark for five years at a time assuming all other requirements are met by your application for trademark. Federal registration, however, offers the following additional benefits: Nationwide trademark protection, instead of the mere statewide protection that state law offer and the limited trademark rights offered under common law; Easier enforcement of your trademark rights; The possibility of attaining “incontestable” status after five years of registration, which makes your trademark difficult to challenge; The right to Use the ® symbol on your products; Help from US Customs and Border Protection to prevent the importation of infringing products (if you notify them); and Access to the US federal court system. The foregoing list is not exhaustive. You can discuss other benefits federal registration may offer you with your attorney. The Attorney Requirement for “Foreign Trademark Registrants” As of August 3, 2019, a foreign trademark registrant must retain a US-licensed attorney to complete a trademark registration. A “foreign trademark applicant” is anyone who is not: A US citizen; A lawful permanent resident; or Someone (an individual or a company) who is applying for international trademark registration under the Madrid Protocol. Even if you are a foreign trademark registrant, meaning that you fall outside of the three foregoing groups, you can still file an initial trademark application without the help of a US trademark attorney. The problem is that you will not be able to respond to Office Actions or execute trademark renewals without a US attorney. These restrictions effectively prevent foreign trademark applicants from completing the registration process without the help of a US attorney.   Why Is a Trademark Registration Attorney Necessary for Domestic Trademark Registrants? For domestic trademark registrants, retaining a trademark registration lawyer is a practical necessity rather than a legal one. A trademark registration attorney can help you: Identify and understand the legal issues at stake. Trademark law can be complex, and the legal issues that present themselves in a trademark application may not be at all obvious to a non-lawyer. Advise you on how to select a strong and effective trademark and evaluate the strength of the trademarks you are already using. Perform a trademark search to identify any similar marks that might prevent your mark from being registered. It is relatively easy to identify an “exact match” trademark. Identifying a “confusingly similar” trademark, however, requires the exercise of legal judgment.  Draft a proper product description for your trademark. Determine which class or classes your trademark should be filed under. File your initial trademark application with the US Patent and Trademark Office (USPTO). Respond to Office Actions. Failure to respond promptly and appropriately to an Office Action can lead to rejection of your registration application. If your application is rejected, prepare and file an appeal with the Trademark Trial and Appeal Board. Keep up with deadlines. You will probably have to file a Section 8 and 15 Affidavit after five years and file a trademark renewal application after 10 years. Advise you on how to use your trademark effectively without infringing someone else’s trademark. Fight back when someone infringes your trademark rights.This may mean sending a “cease and desist” letter, negotiating a settlement, or taking the offending party to court. These complex tasks are not things you want to confront without legal experience. You can avoid future conflicts by relying on a knowledgeable trademark attorney to help you obtain appropriate trademark protection at the outset and take steps to protect your trademark moving forward. Contact a Trademark Application Attorney Today The earlier in the process you seek a trademark application lawyer, the better your odds of eventual approval will be. Contact The Polasek Law Firm for a free consultation. I have spent years helping people across the nation with their intellectual property needs. Just call 832-400-4191 or contact the firm online.

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Articles

The Complete Guide: Types of Patent Infringement

Having a patent gives you the right to prevent others from making, using, or selling your patented invention. If a company or individual does one of these things, the patent owner may have a cause of action for a patent infringement case.  If you believe someone has infringed on your patent or if you have been accused of patent infringement, reach out to an experienced patent litigation lawyer as soon as possible. Your lawyer can evaluate the claim and provide you with legal advice. The Polasek Law Firm can assist you. Polasek Law Firm has been advising clients on patent infringement issues for more than 25 years.  Please give the firm a call at (832) 485-3580 or send an online message – The initial consultation is at no charge. We’ll review the different types of patent infringement with examples. What Is a Patent? The United States Patent and Trademark Office (USPTO) grants patents to inventions that are new, useful, non-obvious, and not excluded from patent eligibility under federal law.  A utility patent typically lasts for 20 years from the filing of the application.  What Are the Different Types of Patent Infringement? There are several types of patent infringement. Infringement can be direct or indirect, and it can be literal or under the doctrine of equivalents. Direct Infringement Direct infringement occurs when someone directly violates your patent rights. That is, they make, use, sell, offer to sell, or import your patented invention. Indirect Infringement Indirect infringement occurs when someone provides support for a directly infringing activity. Indirect infringement can be through inducement or contributory infringement. Induced Infringement Induced infringement occurs when a party with knowledge of the patent encourages or influences someone else to commit acts of infringement. For example, the person might provide someone with instructions for creating the patented invention. Contributory Infringement A person commits contributory infringement when they supply components of a patented invention knowing that the components will be used to infringe a patent. For contributory infringement to exist, the component must have no substantial non-infringing uses. For example, if someone sold a product that would be useful only if combined into a patented product, that might be considered contributory infringement. Literal Infringement Literal infringement occurs when a device or process literally meets every limitation in a patent claim. If even one component is different, it cannot be considered literal infringement. Infringement Under the Doctrine of Equivalents If someone has not literally infringed a patent, there still may be infringement under the doctrine of equivalents. Equivalent infringement may occur when the corresponding pieces of the accused product or process are not substantially different from the corresponding limitation in the claim of the patent. What Is The Effect Of Willful Patent Infringement? In the case of willful infringement, a court can triple the amount of damages that it would normally award to a patent holder. Infringement is not literally willful if an infringer had a good faith belief that it was not violating the patent or that the patent was invalid. In that case, they may still be liable for infringement.  What Types of Remedies Are Available for Patent Infringement? Remedies for patent infringement may include injunctive relief and damages. An injunction orders someone to stop their infringing actions.  Money damages are typically awarded for these types of patent infringement under the patent laws, a patent owner is entitled to at least a reasonable royalty.  Additionally, in certain instances, a patent owner may be able to recover lost profits from an infringer. How Can The Polasek Law Firm Help You? John (Ted) Polasek has spent the past 25 years working on all types of patent infringement cases. He has experience with both enforcing patents and defending accused infringers. Ted believes in providing one-on-one personalized service for each client. Contact The Polasek Law Firm today through the online form, or give the firm a call at (832) 485-3580 to schedule a free consultation. Polasek Law Firm is ready to help with your patent infringement case.

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Articles

Trademark vs. Copyright—What Is the Difference?

I frequently receive calls from potential clients seeking to protect their brand or a writing, but unsure whether they need to file a trademark application or obtain a copyright registration.  What is the difference between trademark and copyright law? In fact, they are distinct from one another in several different ways. In a nutshell, a trademark is a word, phrase, symbol or design that is associated with your goods or services, while a copyright is a form of protection for an original work of authorship.  If you have any questions or need help registering your trademark or copyright, please call (832) 485-3580 or send us an online message. What Is a Trademark? A trademark is a word, name, symbol or device used to identify your goods and services. In most cases this representation is visual—think of McDonald’s Golden Arches, for example, or the KFC slogan “It’s finger lickin’ good.” A trademark, however, can also be a sound or even a scent. You may acquire “common law trademark” protection through your use of a trademark in commerce. However, common law rights are limited, typically only to the specific geographic location of its use in commerce. You can obtain more expansive rights by obtaining a state registration, or better yet, a federal registration.  A federal registration provides you with the strongest protection. What is a Copyright? A copyright protects creative works such as novels, paintings, photographs, websites, and even computer software source code. A “copyright” attaches to a work the moment it is affixed in a tangible medium.  You must register your copyright with the US Copyright Office to enforce your rights in a federal court.  Trademark vs. Copyright: A Summary of the Major Differences Following are some of the primary legal differences between trademarks and copyrights: Trademark law protects your brand that distinguishes your products and services from others. A copyright protects an original work of authorship, whether or not it represents a particular business or product. Affixing a work in a tangible medium automatically generates a copyright, while actual use (or filing an “intent to use” application) in commerce generates rights under trademark law. A trademark cannot be “confusingly similar” to a prior trademark, while a copyrighted work must be “original.”  A trademark endures as long as you continue to use it in commerce and file renewals as required under law, while a copyright expires after a set period (typically the life of the author plus 70 years).  Although you can register both a trademark and a copyright at the federal level, the registration process is different for each one. Potential Pitfalls The process of generating, registering, and protecting trademarks and copyrights can be complex. The following are some of the most common pitfalls: Failing to perform a trademark search to make sure that your mark is not confusingly similar to another mark. Failing to properly use a trademark. Failing to monitor the market to make sure someone else is not infringing your trademark or copyright.  Failing to properly identify your registered trademark or copyright.  When it comes to protecting your business’s intellectual property rights, it is critical that you get it right the first time around.  Contact The Polasek Law Firm Today For a free consultation, contact an experienced intellectual property attorney at The Polasek Law Firm by calling (832) 485-3580 or by contacting us online.

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Articles

What Is the Process of Copyright Registration?

What is Copyright Registration? From the moment you create an original work, you have an exclusive intellectual property right to make copies of your work. This is known as copyright. This right exists regardless of whether you publish your work or register it with the federal government. However, there are many benefits to registering your copyright with the U.S. Copyright Office, such as: Providing evidence that your copyright is valid; Allowing you to sue for copyright infringement in federal court; Putting others on notice of your copyright; and Allowing you to collect statutory damages for copyright infringement. If you have created a new work, consider consulting an experienced copyright attorney to help you understand what is the process of copyright registration. They can help you prepare your copyright registration, advise you about copyright infringement, and help you with contracts to publish or license your work. Steps in the Copyright Registration Process If you decide to register your copyright, you will need to pay a fee depending on is you are re-registering one piece of work. The typical copyright registration cost for standard registration is $65 and if you are submitting for a piece of work that has been registered before and you are the only author, the fee is $45. You will also need to submit an application to the U.S. Copyright Office. This process involves several steps: Prepare Your Registration Materials Your copyright registration consists of three things: Your registration form, Your registration fee, and Copies of the work you want to register. Generally, you should plan to include one copy of your work if it is unpublished and two copies if it is published. Determine How You Want to Register Your Copyright You can register a copyright either by mail or online. The easiest and quickest way to register your copyright is by submitting your registration online with the U.S. Copyright Office. Online copyright registration also has cheaper filing fees than paper registration. In many cases, you will need to mail the copies of your work separately, even if you complete registration online. However, the following works may be submitted electronically: Works that are published only electronically, Unpublished works, and Architectural works. If you prefer to register your copyright by mail, you need to choose the appropriate form for the type of work you are copyrighting. The Copyright Office has different forms for visual arts, performing arts, literary works, sound recordings, and single serials. You can download the forms online or request to have them sent to you by mail. You can mail your form to: Library of Congress U.S. Copyright Office-SR101 Independence Avenue SEWashington, DC 20559-6000 If you complete your registration by mail, you need to include your fee and copies of your work in the same package as your registration form. Follow Up on Your Registration If you register online, you will receive an electronic confirmation. If you register by mail, you should consider using certified mail to confirm receipt. The U.S. Copyright Office will not send you a confirmation. It generally takes about three to nine months for the Copyright Office to process your registration. The length of time depends on whether you submit your registration and copies electronically or by mail and whether further communication is needed before the copyright can be granted.  If you file online, you can check the status of your claim online. If you file a paper application, you can contact the Copyright Office to check your claim?s status after about six weeks. If the Copyright Office has questions or needs more information from you, it will reach out by mail, email, or phone. If the Copyright Office cannot grant your copyright, it will send you a letter explaining why it rejected your registration.  If all goes well and your copyright is registered, the Copyright Office will send you a certificate of registration by mail. How Long Does Copyright Last? The length of time a copyright lasts depends on when it was registered and whether the author is an individual or an institution. For any copyrights registered after January 1, 1978, the following rules apply: Individual Authors If the author of a work is an individual, their copyright will last for the length of their life plus 70 years. If the work has more than one author, then the copyright will last for the length of the last surviving author?s life plus 70 years. Institutional Authors Different rules apply if the author is an institution, such as a corporation or nonprofit organization, or someone they hired to complete work on their behalf. In this circumstance, the copyright lasts either 95 years from the date of publication or 120 years from the date of creation, whichever comes first. This rule also applies to anonymous authors. Contact an Intellectual Property Lawyer Today If you have questions about copyright registration or if you have questions regarding trademarks or patents, our experienced intellectual property attorneys are here to help. Contact us today and see what Polasek Law Firm can do for you. 

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Trademark

How to File a Trademark Application

Your name, logo, or slogan are important parts of your business’s identity. To protect that identity—and your business’s reputation—it is important to file a trademark application form to start the process of registering your trademark. Doing so is relatively easy and can save you many legal headaches in the long run. Whether you file an application seeking registration of a trademark on your own or with an attorney’s help, here is what you need to know. If you are looking to register a trademark, fill out the application below to get the process started. You may also send us a message or call (832) 485-3580 today for a free consultation. Fill Out the Free Form Below to Get Help With Filing a Trademark Registration Step 1: Trademark Clearance Search Also called a “knockout search,” we encourage you to take this step.  One purpose of conducting a search is to determine whether your trademark is eligible for registration in the first place. The U.S. Patent & Trademark Office (USPTO) will not approve a trademark application for a mark that is confusingly similar to another mark.  The second purpose of a search is to determine whether the use of your mark may violate the rights of someone else that is using a confusingly similar mark. Conducting a clearance search can be difficult; knowing what to search to make sure you uncover any conflicting trademark registrations takes practice and experience. As a result, many business owners opt to hire a trademark lawyer to have the search conducted for them. Step 2: Complete the Trademark Application Form The USPTO offers registrations online through its Trademark Electronic Application System (TEAS). There are two different filing options you can choose from TEAS Plus or TEAS Standard. TEAS Plus applications cost less ($250 per class compared to $350 with TEAS Standard) but come with more requirements. Despite the higher cost, many people prefer TEAS Standard because it offers more flexibility overall. Regardless of which application you choose, every trademark application requires the same basic information. This is the same information an attorney preparing a trademark application for a client would ask for: The name, address, and entity information of the owner of the trademark (usually the business entity using the mark); The name, email, and mailing address of the person with whom the USPTO should communicate about the application (usually an attorney); An image or drawing of your trademark if you are registering more than a word or phrase (for example if there is a graphic design element you need to protect); A list of the goods or services your trademark represents and the relevant international class for each; and The date when your trademark was first used in commerce. At the end of the trademark application form, you will need to complete and sign a declaration that the information you’ve provided is true and not misleading. Understanding Trademark Classes Trademark law categorizes each trademark according to the goods or services it covers. There are currently 45 distinct classes, with each covering a particular set of goods or services. For example, Class 16 covers “paper goods and printed matter” while Class 45 covers legal and other professional services. Intent to Use vs. Use-Based Applications Trademark protection is unique in that you can get it only if you are actually using your trademark. A majority of trademark applications are use-based, meaning they cover a mark that is currently in use in commerce. By contrast, an “intent to use” application covers a trademark that you plan to use in commerce in the future. A key part of the intent to use applications is the honest intent to use the mark in the future. In most cases, you won’t be allowed to file an intent to use application simply to “reserve” your trademark for future use. Step 3: Submit the Completed Trademark Application Once you’ve completed the trademark application form, signed the declaration, and paid the fee, your application is ready to submit. After doing so, you will receive a serial number allowing you to check on the status of your application. Typically, the USPTO will assign your application to an examining attorney for review within approximately three months of the submission date. Because the USPTO receives a large volume of applications, however, it may take as long as six months. Can I File a Trademark Application for Free? No, federal (and even state-level) trademark applications always come with a fee. As explained above, the exact fee may vary depending on which application type you choose. If your budget simply cannot make room for the application fee, you may be able to take advantage of common law trademark rights. Simply using your trademark in commerce builds these rights. Keep in mind, however, that your protection is much more limited without a federal registration. For example, common law trademark protection extends only to the immediate geographic area in which you use your trademark, while a federal trademark is designed to cover the entire United States. Step 4: Monitor Your Application Over the next several months, it’s important to monitor your application and respond to any communications you get from the USPTO. If the examining attorney discovers any issues with your application, you will receive an office action explaining the issue and the reason for the application denial. Step 5: Maintaining Your Mark After It Is Registered If the USPTO approves your application, it will publish your mark for 30 days and thereafter you will obtain a Registration on Principal Register, giving you full federal trademark protection. Going forward, you will have to file additional documents to renew your registration. If you originally filed an intent to use application, your mark will not mature into a Registration right away. Instead, you’ll have to submit a “Statement of Use” with evidence that you’ve started using the mark in commerce before the USPTO registers your trademark in Principal Register. Need Help Filing a Trademark Application? Registering a trademark is not as simple as it […]

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Another Patent Infringement Case Involving A Software Patent Falls Short

The Federal Circuit once again held, in Rain Computing, Inc. v. Samsung Electronics America, Inc., et. al., 2020-1646 (Fed. Cir. March 2, 2021), that a patent owner cannot rely on a general-purpose computer as a structure for performing the function recited in the claim language when the claim language is construed to be means-plus-function.  Most patent litigators are well familiar with this issue as it routinely arises in software patents.  The more interesting twist to this decision was the Court’s application of these principles to a means-plus-function term “nested in” a method claim.  Ultimately, the Court determined that because neither the claim language nor the specification provided an algorithm to achieve the function set forth in the claim, the claim was indefinite.  The take-away from this case is that regardless of whether the asserted patent infringement is based on an apparatus or method claim, accused infringers should be looking to apply means-plus-function principles to software-directed patents and patent owners need to be prepared to respond to this challenge.

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