Massachusetts Patents Legal Questions

Most new products are developed in stages. This is particularly true when only one or two inventors are involved and research is often needed. Sometimes what appears to be a minor improvement will be significant in the Patent Office, particularly, if functionality is the issue. Under U.S. law, an inventor can link a new Patent Application to a previous Patent Application, if the older one is still pending in the Patent Office. Based upon your fact pattern, it would seem that you would be well-advised to move forward immediately if you can link to your previous Patent Application. You should seek the advice of Counsel here, to make sure that that you don't lose any rights here. Good luck!... Read More

When you submit a Patent Application to the U.S. Patent Office, you are required state that you believe that you are "the first and true inventor". You may be wrong but you do believe that you are the "first and true inventor". If you were to be granted a U.S. Patent for an invention that you did not invent or that you copied from someone else, the U.S. Patent would be of no value and would not be upheld in court once the true facts were revealed. Many Patents are improvements to inventions that someone else has made, and you would certainly be entitled to a Patent for the improved portion of the invention. I hope that this helps.... Read More

In addition to new (1) processes, (2) machines, (3) articles of manufacture, and (4) compositions of matter, the U.S. Patent Office has granted patents for new business methods and man-made life forms. Examples of U.S. Patents for articles of clothing are U.S. Patent No 6,801,140 "System and Method for Smart Clothing and Wearable Electronic Devices"; U.S. Patent No 5,555,490 "Wearable Personal Computer System"; U.S. Patent No 5,285,398 "Flexible Wearable Computer" and U.S. Patent No 5,416,310 "Computer and/or Scanner System Incorporated into a Garment".... Read More

This is the question that has no definitive answer. The patent office is not supposed to use "impermissible hindsight" which renders almost all inventions obvious. This is the kind of thing that happens when you see an good answer to a problem and think to yourself - "Why didn't I think of that?" That would be an example of impermissible hindsight. Of course getting to the "right" kind of obviousness is the patent office's job. It is difficult to say exactly what is permissible and what is not. The letter of the law is written so that if it would be obvious to one skilled in the art of whatever your invention is - the so-called PHOSITA - (person having ordinary skill in the art) then you are not entitled to a patent. If your invention would be deemed obvious to a person skilled in the field of knowledge related to your invention, then it is not patentable but if would take experimentation, etc. to come up with your solution, then it should be patentable. It is anything but clear and that is the way it is with most things in the law. You have the black letter and then you have to decide the individual case based on the particulars. Since most patents are for improvements over things that already exist (very few patents are for brand new areas of invention) the answer to the question of what is obvious is a tough problem and one that no patent professional can answer with absolute surety.... Read More

Yes, if you and/or you and your colleagues are the inventor(s) and were the first to disclose it publicly (3 mos ago). You can file a patent application provided you do so within 1 year for the date of public disclosure. After that, your disclosure will be prior art that may anticipate or make your invention obvious.... Read More

You submit an application for a patent to the U.S. Patent and Trademark Office. It includes a complete description of your invention or design which the USPTO publishes on its web site. Any one who has a similar invention/design or thinks that there is prior art that would prevent a patent on the invention/design has a designated period of time to submit an objection to the issuance of a patent to you and the reasons why. The USPTO then has to decide if your idea is sufficiently unique to issue a patent or if there is valid reason to refuse to do so. A patent can also be challenged after it is issued via a law suit filed in federal court.... Read More

Your question raises a number of issues. First, how do you know the "copyright has run out"? The duration of a copyright is among the most notoriously complicated terms to calculate. This is because the copyright term depends on many variables that have changed with the copyright laws over the years, e.g., who the author is (anonymous, corporation, person), the author's lifespan, whether the work is published or unpublished, where it was published, when it was first published, whether or not it was published with a valid copyright notice, whether the copyright was renewed or not, the country you are in, etc. In the US for a copyrightable work today, the term is life of the author plus 70 years. Back in 1790, the US copyright term was 14 years after publication, with an option for another 14 years. Significant changes to the copyright laws and consequently their terms of duration occurred in 1998, 1978, 1976 and 1909, among others. Second, in order to obtain a valid copyright for a work, such as a song, your work must be "original". Original means that the work must have been developed independently by its author, and there must have been some creativity involved in the creation. This begs the question, what is original about your cover of someone else's song? Thus, it is questionable whether you have any intellectual property in the cover song recording. Obviously, if the original song were still subject to someone's copyright you would have to seek a license from the copyright owner directly or obtain a mechanical license indirectly in order to legally sell and/or distribute your cover song. Assuming that the copyright for the original song really has expired, there should be no need for a license. You would certainly be the owner of such a cover song recording. You might even be able to obtain a copyright registration for your song. This is because there is no substantive review at the Copyright Office of whether or not your work is in fact copyrightable. However, the validity of your copyright (your IP), regardless of the registration, might be called into question (e.g., during litigation) because of the lack of originality of your cover based on someone else's original creative work/song. As always you should consult a Copyright Attorney to fully explore your situation and what you wish to achieve.... Read More

You didn't used to be able to copyright building. However, the Rock and Roll Hall of Fame in Cleveland convinced a court that it was such a unique building that it deserved to be able to stop photographers from selling their pictures of the structure. Since then, more and more unique structures have gained copyright protection. But the generic ranch-style house is still available to anyone who wants to copy it.... Read More

I believe that a very important factor and a common place where people go wrong with that is that the spoof needs to be making fun of the original work in some way. If you are not making fun of the original work but instead making fun of something or someone else, then it is not really a spoof and you lose the "fair use" defense.... Read More

It is quite common to use ratios of components in composition of matter (chemical) patent claims. So, there is nothing inherently wrong with you doing so. The question that comes to mind is whether you are trying to claim some composition of matter that is novel and nonobvious over the what others have done (the prior art). If you are simply trying to claim "slight variations" over prior art ratios of components, you will likely be rejected under obviousness if not anticipation grounds. Accordingly, you should consult with a patent attorney to discuss your inventive composition of matter and how it differs from the prior art. If your composition of matter lacks novelty or obvious in view of what others did before you, you will not obtain a patent.... Read More

I am not sure I completely understand your question, so I will try to rephrase it so that I can answer it. It would appear that you are asking whether there are any prior art considerations or analysis that takes place at the Patent Office before a patent application is published? The answer to that question is no. US patent applications are published automatically (approximately 18 month after filing date), unless a specific "non-publication request" is filed with the original application. There is no review on the merits of whether the subject matter disclosed and claimed in any particular patent application is "patentable" before it is published. It is just published for whatever it discloses. Such a published patent application becomes prior art to any other patent applications that follow its filing date. So to answer your last question, yes, a patent application can be published even if there is a similar patent already issued. That issued patent may prevent your patent application from issuing if it is in fact relevant prior art and is considered by the examiner. But, it has no relevance on whether your pending application gets published or not.... Read More

Yes, you can probably use the quotes with attribution since they can't be copyrighted or trademarked (in most cases). How you use the quotes though may raise issues. If you use the quotes out of context, such as using "This is the best product I've ever used! John Doe" to refer to your product instead of the one the author was really talking about, or if you place the author in a false light, such as "I felt such comfort in his hands. Reverend John Doe" when you're selling adult films, the author has every right to file suit.... Read More

Given that copyright laws extend back to approximately the 1920's now, I doubt there is much available in the public domain yet. If the material is in the public domain, you may be able to use it and make the adaptations that you describe. But be aware that there may be other kinds of protection on the work that would prevent you from doing this. Check with an IP attorney to see if what you have in mind is feasible.... Read More

A trademark indicates that the company makes a particular item, such as shoes, manufacturing equipment, frozen green beans, etc.; a service mark indicates that the company provides a service, such as fixing shoes, installing equipment, delivering green beans. The circle R indicates that the mark has been registered with the U.S. Patent and Trademark Office. The letters TM indicates that the mark hasn't been registered but the company is using it as a trademark.... Read More