Patents and Trademarks and Copyrights, Oh My!

In this episode, Andrew talks to Beth Scarborough, a librarian at UNC Charlotte, about how you can protect your entrepreneurial ideas with patents, copyrights and trademarks.

Andrew: Welcome back, everyone. This is Andrew Bowen with CBRbiz.com’s B2U Podcast, bringing business resources directly to you. Today we’re talking about an idea, your idea. Maybe it came to you in a dream–a daydream or a regular dream–or maybe it’s been piecing itself together in your head for years. But either way, it’s your idea, and it’s got to be a good one. So you develop it into a product or process that’s yours. Now, how do you protect it? With a patent? With a trademark? Or is it a copyright? I don’t know.

That’s why we have Beth Scarborough here, from UNC Charlotte, on our show today, which is all about producing your million dollar ideas.

Hello, Beth, can you first tell us a little bit about yourself, and how you came to be where you are at UNC Charlotte?

Beth: Thank you, Andrew. And thank you for having me on your show. I am a librarian at UNC Charlotte, and I am also the patent and trademark representative for UNC Charlotte’s J. Murrey Atkins Library.

Andrew: Go, 49ers!

Beth: Yay! And as a patent and trademark resource center, we are one of 80…about 80 or 82…resource centers in the United States. The other one that is in North Carolina is at North Carolina State University, and there’s one in Clemson. And we’re also a Government Documents Library, so that kind of fell into place in that respect.

Andrew: That’s great. So first, we mentioned intellectual property. Can you explain a little bit about what that is, and the different types of intellectual property? Because I know we hear things about…Like the only thing I know about intellectual property is seeing that Apple posted some new patent that somebody was paying attention to, and everybody thinks the future is here.

Before I get off track, what is intellectual property?

Beth: Well, you can kind of think about intellectual property kind of like you would any other property, but it’s property that’s created by the human mind. So it could be inventions, which are patents, or it could be copyright, which would encompass art, and music, and drawings, film, written word, musical recordings. And it would also involve trade secrets and trademarks. So copyright is protected by the Library of Congress. And copyright is valid for 70 years after the death of the artist. And you can apply for a copyright at copyright.gov, and it’s about $65 per work. You don’t have to get a copyright, but it would be good for you to do so because it would be registered. In general, registration is voluntary, but copyrighting exists from the moment when the work is created. You will have to register, though, if you want to bring a lawsuit for any kind of infringement on your work. Many people register their works because they wish to have the facts of their copyright on public record, and have a certificate of registration.

Andrew: So it’s only $65, so it sounds like a really good investment for something you have created.

Beth: Right, per work.

Andrew: Yeah. I thought you said per word for a second, I was like, am I going to say, my goodness those can get expensive for someone who has longer songs. So it sounds like there’s pretty clear differences between a trademark, and a copyright, and a patent.

Beth: Mm-hmm.

Andrew: So how does one know which one is right for you? I mean, I know you’ve talked about copyrights, or works of art and things like that, but what about the difference between a trademark and a patent?

Beth: Okay. Trademarks and patents are governed by the U.S. Patent and Trademark Office in Alexandria, Virginia. And a patent would be an invention. There are three different kinds of patents. There are plant patents, and there are design patents, and then there are utility patents. So the difference between those are, a plant patent can be granted to anyone who invents or discovers, and asexually reproduces, any distinct and new variety of plant. A design patent would be…is different in that it protects the design of a product.

So you mentioned Apple. Apple has a design patent for the look of the iPhone, for example, the body and shape of the iPhone. Also the charger–the iPhone or the Apple charger–that’s protected by a design patent. And that’s different because it’s just the look of the piece; it’s not, you know, the guts of the patent itself. That is not different…or the guts of the product…that’s not different, just the look and the shape. A utility patent is probably the most common patent, and the one that most people would think of because that’s what you would get if you invent something, or invent a process, a business process, an industrial process, or a tangible product. A patent is good for 20 years, and the design patent is good for 15 years, and there are varying prices on those two.

Okay, a patent is an invention or a process or a method; it’s not simply just an idea, so it has to be some type of tangible product. It has to be new and non-obvious to someone who is an expert in the field. So you couldn’t just, like, change the color of something and then get a patent for it.

Andrew: Or reinvent the wheel, essentially?

Beth: Right.

Andrew: Yeah.

Beth: Yeah. But speaking of that, 99% of all patents are based on something else. And that’s really the whole premise of, you know, intellectual property, and having a patent and trademark office is that it spurs invention. And so, you may improve upon something by making it faster, or in some way, better. And so that’s really how everything works. And so when you’re talking about reinventing the wheel, well, yes, you do, kind of, reinvent the wheel and get your own patent. Like I said, 99% of the patents issued are…have been reinvented.

Andrew: So it fosters both invention, and then reinvention and innovation?

Beth: Right. Yes, spurs the economy to economic growth.

Andrew: That’s great. So how about trademarks?

Beth: Trademarks are also governed by the U.S. Patent and Trademark Office.

Andrew: That seems to make sense, yeah.

Beth: And whereas, the copyright isn’t. I might not have mentioned that, but copyright is governed by the Library of Congress, so it’s a totally different office. The trademark really can be your…maybe your best piece of intellectual property because it is really defining your product and your company. It’s separating it from others that may have a similar product. So a trademark is, and it has to be used in commerce. So a logo, or some kind of mark, you know, like the Nike swoosh and, you know, obviously, Apple’s trademark.

Andrew: Yeah.

Beth: For example, the Hershey Kiss is trademarked. Not just the name, Hershey Kiss…

Andrew: But the shape itself?

Beth: Right. The shape of the product, you know, and also the silver wrapping is a trademark. So you can trademark color. I think Coca-Cola has a trademark on the color red on their can of Coca-Cola. A sound can be trademarked, like the MGM, the lion roar is a trademark. So a lot of different things can be…you know, you can have several trademarks on one product.

Andrew: So it’s pretty much anything that can be visually, or physically associated with your business? Is that kind of a way to…

Beth: Kind of, yeah. And your logo would be, you know, a good example. And it has to be…You can’t…not be using the product in commerce. So, you know, if you’re planning on establishing a business, then you have to apply for a trademark within six months of actually starting your business. You can’t say, “Maybe I have this idea. I’m going to, you know, have this product in five years and apply for a trademark then.” No, you wouldn’t want to do it…part of it is it has to be used in commerce.

You can get a trademark and really keep it perpetually, as long as you pay the fees, and as long as it’s continuously used in commerce. Obviously, Coca-Cola has continued their trademark. Campbell’s Soup has a trademark. It’s been used for over a hundred years. And then there are fees that you incur every so often.

Andrew: Are those fees flat fees, or are they sales-based? That’s probably a silly question, but does Nike pay more because of the swooshes everywhere more than I would pay with my non-swoosh?

Beth: Actually, it’s a good question because you pay…it’s around, I think a little bit less than $400 for the trademark fee per area that it’s used in. So for example, if you had your product on t-shirts or clothing, then you would, you know, you would pay one, you know, the $400 for that, if you also had it on paper products. So it’s based on that area that you’re using it in. And also, if you had it on computers, so, you know, it’s, you know, based on wherever it’s used, that would be the fee.

Andrew: Interesting. Okay, all that is really great. So isn’t there something called trade secrets where…we hear about that–novels and great things like that–but those do exist in the real world, right?

Beth: Yes. Yes. And trade secrets are not governed by the U.S. Patent and Trademark Office, but, you know, it seems like there is affiliate intellectual property, but it is actually governed by contract law. And you can actually have a trade secret for as long as you can keep it a secret. So a customer list could be a trade secret, you would have non-disclosure agreements with employees, and that type of thing. Obviously, the Kentucky Fried Chicken secret recipe is a trade secret, and the formula for Coke. So those have been maintained for many years. So there’s no real, you know, time frame for your…it’s no longer valid. It’s as long as you can keep it a secret.

Andrew: As long as you can keep your mouth shut, right, nobody in your emails, yeah. So with all of these things, specifically the trademarks, copyrights, and patents, what’s the realm of time we’re looking at if I applied for a copyright, and how long would that take, or a patent? I assume the timing is very different based on whichever one it is, but can you get a patent in a week?

Beth: Oh, no. The copyrighting would register with the copyright office; I’m not sure exactly how long it takes with them. A trademark…probably, you would get that within a few months, but you get some correspondence from them, you know, maybe within several weeks. But a patent can really…it depends on the industry that you’re in and how many patent examiners there are looking at it. So it could take three years. For example, you can be fast tracked; you know, pay little more money to fast track for your patent. But if it’s, you know, a hot industry, and there not that many patent examiners in that industry, it could take a little longer. But they’re always looking for engineers, people with expertise, to work there at the USPTO. So if anyone is graduating college and looking for a job, that would be a good place to look.

Andrew: Engineering specifically, or just kind of a broad range of expertises? For those like anybody, right?

Beth: Well, I assume they are looking mainly for engineers.

Andrew: Oh, that’s really good, good information. So for many of the listeners, I think it’s…okay, I’ve got the idea or patent…I guess it comes on the patents specifically. So if a business owner has an idea, then says, “I’m the first person,” or “I think I’m the first person,” how can anybody be sure they aren’t the first person…or they are…with the patent, or, you know, if they have a saying they want to trademark because they’re using it…Is there a way to check up and make sure that they don’t infringe on someone else’s stuff?

Beth: Yeah. And that’s where you can contact me at UNC Charlotte J. Murrey Atkins Library. You can call me, you can email me, make an appointment because I can show you how to go through the databases and look and see if there is another trademark in your area. And you may have the same phrasing of another company, but if you’re in a totally different segment of industry, you may be able to get that trademarked. Obviously, you wouldn’t be able to use Coca-Cola, or something that’s really known to everyone, but…

Andrew: But I invented Cola-Coca. No? Wouldn’t work, would it?

Beth: No, no. Sorry. But you can contact me, and I’ll show you how to get through those databases. It’s free to use. And the same with the patent process. A lot of people think that they are the first person that’s ever invented their product because they don’t see it, maybe, in the marketplace. But it’s really amazing; you would never know that an airbag was invented in the 1950s, you know, who would’ve known?

So it’s really good to go out and search the databases, and you can’t just search for keyword either. So the best way to search is to search by classification. And that’s where I would come in and show you how to search by classification. Who would know that the Slinky is titled Toy and Process of Use? So if you’re  just doing some kind of keyword search, how would you even look for that?

Andrew: Yeah, because they won’t come up under…

Beth: Under keywords.

Andrew: Yeah.

Beth: And sometimes, they deliberately did that. Also, you can look up a mouse trap; I’ve seen it called “Rodent Extermination Device.”

Andrew: That’s pretty specific.

Beth: Instead of the mouse trap, which you would think would be kind of the generic word. But, yeah, you’d need to look by class to see…to find what classification you’re…Everything in the world has a classification, and there’s, you know, millions and millions that you would kind of go through. But you do some patent searching. You can even go to google.com/patents.

Andrew: Oh, really? I was going to say, it’s not as simple as a Google search, but it sounds like it is!

Beth: Well, you can start there. But you go to the patent segment of Google, and then search for your terms. You can scroll through your findings and see something that’s kind of close to what you’ve invented, and see how it’s classified. There’s usually a link to the U.S. Patent and Trademark databases from that Google search, so you can see how USPTO is classified.

Andrew: And I thought Google was awesome for adding in the…automatically doing math, if you put in two plus two in the search bar and it tells you the answer. This is next level; it goes straight into the patent information.

So, you mentioned yourself as a great resource for folks who need help deciding if they are infringing on someone else’s patent, or trademark, or copyright. What about people who are kind of looking to develop their own, or need advice on any of this stuff. Is that something you can offer, too, or are there groups around Charlotte that can help people with that?

Beth: Well, I’m not an attorney, so you’d want to speak to an attorney.

Andrew: Okay.

Beth: But the attorney fees could get very, very expensive. If you’re a small business, and you’re starting out, not making a lot of money, there are a couple of places that you can go. One is the North Carolina Bar Association; they have a program for intellectual property called NC LEAP, and they have an online application that you can apply as a client of theirs. One of the parameters is that you can’t make more than 300% of the poverty level in the U.S.

Another facet is that you have to be serious about your business. There are attorneys all over that participate…you know, attorneys in North Carolina…that participate in this group. And they’re looking, for small businesses, they’re looking to contribute to the economy. So you can’t just have say, “I have this idea for this thing.” You have to probably have a business plan and some concrete drawings, and maybe–not a prototype per se–but you need to have some things lined up as to what you’re planning on doing, and how would that invention would affect your business. I can give you their website. I think its ncbar.org/ncleap.

Andrew: That’s L-E-A-P?

Beth: Yes.

Andrew: Okay.

Beth: Yes. And I do have a resource guide that I can…I do have a link to their website off of my resource guide which is guides.library.uncc.edu/patents. I know it’s a big one, but…

Andrew: That’s actually a lot more simple than some URLs are. Yeah.

Beth: And there are links to NC LEAP from there. There is a backlog with NC LEAP, so, you know, if you’re really pushing it, you probably don’t want to get on their waitlist. But there are also law school clinics that are affiliated; they have to be certified with the U.S. Patent and Trademark Office. And there are two law schools in North Carolina that work with clients. One works with patents and trademarks, and one just works with trademarks. North Carolina Central Law School works with patent and trademark clients, so you could contact them. I would think they would be assigned to a law school student that would also be under the supervision of a professor, who has expertise in intellectual property.

Probably the best time to look for them would be at the start of the school year, like in August. Maybe when they’re accepting clients, I know that North Carolina Central did cut off and say no more patents there for a while, but I’ve noticed that it’s back up on the list that they’re accepting patent clients.

University of Carolina Chapel Hill Law School, they accept trademark clients but no patents. So that’s a place that you can go. I’m not sure, but I imagine that they have the parameters as well as far as income. But if you’re needing help, you’re just starting out, you’re not making a lot of money, but you think that this is something that’s important to you, then I would get…that would be one of the first places I would go, would be to get in touch with those people. I would not suggest anybody go out and try to get a patent by themselves; it’s too complex.

Andrew: Yeah, very nuanced and very specialized information that requires a substantial amount of expertise.

Beth: And then I wouldn’t, you know, I mean there are probably groups out there that would try to get your money. Invention groups on the internet–that help you invent type of thing–I would stay away from those, too.

Andrew: Is there anything to look for on the other end of the spectrum? Are there any certifications or credentialing?

Beth: There is a list of intellectual property, trademark and patent attorneys that you can choose from on the USPTO’s website.

Andrew: Okay. So not exactly credential, but it’s a kind of approved list more than anything?

Beth: Right. And there are some in Charlotte that are on that list, too.

Andrew: That’s great. So I think we’re coming up near the end of our show. Usually, I ask for a last bit of wisdom to our listeners before I set you free. In one sentence, what would you say to anybody who’s going through this process, one of the few processes?

Beth: With one sentence, well, I did want to mention that you…There are fee schedules, you know, it’s really…You know, the Patent Office has really made it special and easier for people who are low income to apply for a patent. They are trying to spur the economy. And so if you would qualify as a micro-entity, which would be less than 400% of the U.S. poverty level, which actually ends up being about $150,000, then you can get a 75% reduction in the patent fees. So there are three basic fees that you can incur: the basic utility fee (that’s $70 for a micro-entity versus 280 for a regular customer), basic search fee ($150), and basic exam fee ($180 for the micro-entity). So you’re looking at maybe around $400 for that. So it’s really…that’s pretty cheap.

Andrew: That’s not too bad.

Beth: Any other advice, just make sure that you…That someone else doesn’t already have your product…has invented your product…because I find that, you know, like I said earlier, a lot of people think that it’s not out there because they don’t necessarily see it, but it may be out there.

Andrew: Yeah. So do your research, and use the experts available. Yeah. All right, well, great. Listeners, this is been CBR’s B2U Podcast with Beth Scarborough from UNC Charlotte. Beth, thank you again for sharing your knowledge with our listeners on patents, trademarks, copyrights, and trade secrets, as long as you can keep them a secret.

Listeners, if you have questions, please tweet them to us @cbrbiz. If you haven’t yet, be sure to subscribe to this podcast on iTunes and Google Play. Until next time, we mean business.

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