The Patent vs. the Trademark

Intellectual Property Rights have been governed by the US Patent and Trademark Office (USPTO) for many years. IPRs exist on patents, trademarks and on copyrights. A novice inventor may be confused about what their creation should get: does it need to be patented, or should he or she get a trademark or copyright for the item?

First of all, copyrights apply generally to information or ideas, and prevent outside parties from capitalizing on them. An inventor of an object or process is not likely going to be seeking a copyright. In order to understand how patents and trademarks differ from each other, it’s necessary to list definitions of both and the different types.

According to the USPTO, the definition of a patent is the grant of a property right to an inventor. A property right is “the right to exclude others from making, using, offering for sale or selling” the invention in the United States, and importing the invention into the United States. There are three types of patents.

Patent type one: Utility Patent

A utility patent will be one that’s given to a machine, a process, a mechanism, or composition of matter that is not obvious and does not resemble prior inventions – called prior art – too much. These patents last 20 years from the initial filing of the patent, and will stay active as long as the inventor keeps up with associated fee payment schedules. Approximately 90 percent of the patents that are filed at the USPTO are utility patents.

Patent type two: Design Patent

A design patent differs from a utility patent in that it is issued for an original, ornamental design for an existing product, and doesn’t require the product to have new functionality. These patents last 14 years from the initial filing and do not require continual fees to be paid.

Patent type three: Plant Patent

Plant patents are issued to inventors that have developed new asexually generated plants, seedlings or associated hybrids. The plant patent protects the invention from being made, used or sold by others for a period of 20 years. Plant patents do not require a regular maintenance fee.

Other filings that inventors can make through the USPTO are reissue patents, which change the details of an original patent, or a defensive publication, which prevents others from patenting a particular invention.

Trademarks, on the other hand, are defined by the USPTO as a “word, name, symbol or device which is used in trade with goods and to distinguish them from the goods of others.” Trademarks are used specifically to make sure that the only person or group to capitalize on the sale of their product is themselves. Trademarks exist on just about any common item that can be purchased in a store, and are often used to build a reputation for the group that owns the trademark. Many people use the trademark to decide whether their business practices produce a product that they want to buy. When a trademark is filed with the USPTO, a picture of the trademark that will be used in advertising must accompany the application.

In general, the inventor will get a patent prior to marketing their product. This will ensure that their invention cannot be reproduced for financial gain. Once the patent is in place, they may decide to form a business selling this product, in which case, they can obtain a trademark for their business.