How to Get Intellectual Property Rights

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methods

1Registering Your Copyright

2Registering Your Trademark

3Applying for a Patent

Other Sections

Tips and Warnings

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References

Intellectual property rights are guaranteed by the Constitution, which provides for Congress to promote science and art by making laws that grant creators exclusive rights in their creations for a limited period of time. To get intellectual property rights, you typically must register your work with the appropriate federal government agency. After registration, you have the right to sue anyone who uses your work without permission in federal court.

Steps

Method 1

Method 1 of 3:

Registering Your Copyright

1. 
   1
   Confirm you are eligible to register the copyright. To register a copyright, you must be the owner of the copyright, and it must meet statutory standards of originality.

   • Generally, the "legal author" is the initial owner of copyright in any musical, artistic, or literary work that they created. One exception is a work-for-hire. If you were paid to create a work for someone else, usually in the scope of your employment, the employer is the legal author and you typically can't claim the copyright in that work. However, ownership of copyright in works created by independent contractors is more complicated and may require written contracts.
   • Copyright provides you with the exclusive rights to reproduce, distribute, display, and perform your creative work, as well as create or authorize derivative works – other art based on your original, such as a remix of a song.
   • Copyright doesn't protect ideas. Before you can get intellectual property rights in your creation, you must fix it in such a way that other people would be able to view it or read it. For example, you might write the lyrics to your song in a notebook, or type a new short story using a word processing application and save it to your computer.
   • Copyright also doesn't protect single words or short phrases. If you have a name or motto you want to use in conjunction with a business venture, you might consider trademark rather than copyright to get intellectual property rights.
2. 
   2
   Complete the registration application. Although your intellectual property rights exist from the moment you create your work in a way that allows it to be shared with others, registration provides certain important benefits including the ability to file an infringement suit in federal court.

   • The U.S. Copyright Office has a copy of the registration application available on its website. You can fill it out directly online, or download it and print it to mail a paper application.
   • Filling out your registration application online has a number of benefits, including lower registration fees and the ability to check the status of your application at any time.
   • The application requires you to enter information regarding the author or creator of the work, the title of the work, the type of work, and the date the work was created or published.
3. 
   3
   Pay your registration fees. The total amount of registration fees varies depending on the type of work you want to register and how you file your application for registration.

   • For example, if you register copyright in a single work online as the sole claimant to the intellectual property rights in that work, your fees will only be $35. However, if you file the same application by sending a paper application through the mail, you must pay $85.
4. 
   4
   Provide deposit copies of your work. A complete registration application must be accompanied by copies of the work for deposit in the U.S. Copyright Office and for use by the Library of Congress.

   • If you're filing your registration application online, you also may be able to file electronic copies of your work for deposit. However, in some cases you still must send a physical copy of the work, even though you submitted an electronic copy.
   • For some works such as films or videos, you also must submit a separate written description of the work along with your copy. A press release or synopsis would meet this requirement.
5. 
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   Monitor the use of your work. Even after you've registered your copyright, you remain responsible for preventing infringement and enforcing your exclusive rights against anyone who uses your work without your permission.

   • Although you don't have to include a copyright notice on your work to maintain your copyright registration, doing so can act as a deterrent to those who might consider copying your work. Just as having a lawn sign advertising your alarm system may deter would-be thieves from attempting to break into your home, a copyright notice can cause plagiarists to think twice before copying your work without your consent.
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Method 2

Method 2 of 3:

Registering Your Trademark

1. 
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   Conduct a trademark search. You must search the U.S. Patent and Trademark Office's databases before you attempt to register your trademark to make sure there are no similar marks already registered.

   • The USPTO will examine your application to determine if the mark you want to register is likely to be confused with another mark that is already registered. The more original and distinct your mark is, the more likely you'll be able to obtain trademark protection.
   • The strongest marks typically involve invented words or words that bear no immediate relation to the goods or services you intend them to represent. For example, although you may associate the word "Nike" with athletic footwear and apparel today, the word itself is the name of the ancient Greek goddess of victory. At least until the rise of the U.S. company, the word had no relation to shoes or clothing.
   • You can search the USPTO's database online at www.uspto.gov/trademarks-application-process/search-trademark-database. The electronic database includes active registrations as well as pending applications and abandoned marks.
2. 
   2
   Consider hiring an attorney. Trademark applications can be complicated, and an experienced trademark attorney can help smooth the process and make sure your application is completed correctly.

   • An attorney's familiarity and experience with the USPTO and the trademark examination process can keep you from making mistakes that could result in your application being denied, and save you from the expense of having to make multiple applications.
   • Since your application ultimately will be reviewed by an attorney, it makes sense for you to also have an attorney on your side. The attorney who examines your application may help you through the process, but he or she cannot give you legal advice.
3. 
   3
   Fill out your trademark application. Your application informs the USPTO of the words or images you want to register, and where and how you intend to use them.

   • Generally, you must include information on the formats in which you'll use your trademark, and the goods or services to which it will apply.
   • You can file your application based on actual use, or intent to use. If you haven't publicly used your trademark in the marketplace, your application typically would be based on intent to use.
   • Applications based on intent to use require additional forms and fees compared to applications based on actual use. Extensions on the period in which to file proof of actual use in commerce may be granted for up to 3 years.
4. 
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   File your trademark application. Once you've completed your application, you can file it electronically on the USPTO's website. Your pending application becomes a matter of public record and is added to the USPTO's searchable database.

   • When you file your application, you must pay filing fees of at least $375. If you want to register your trademark in multiple commercial classes, your fees will be higher.
5. 
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   Work with the application examiner. After your application is filed, it must be reviewed by trademark attorneys who work for the USPTO.

   • Your examiner may send you a letter requesting additional information or revisions to your application before it can be approved. If you don't respond to this letter within six months, your application will be classified as abandoned and you'll have to start the process all over again if you still want trademark protection.
   • It may take several months for the examiner to complete his or her evaluation of your application. In the meantime, you can check the status of your application on the USPTO's website and update your address or other contact information as necessary.
   • After the examining attorney approves your trademark, the USPTO will publish notice of your pending registration in its official gazette. This publication gives anyone who wants to file opposition to your registration 30 days to do so. You'll have to attend a hearing to defend your registration if anyone files opposition to it.
   • If no opposition is filed, and you have completed any other necessary filings, the USPTO will issue your registration certificate.
6. 
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   Maintain your mark. You must file periodic documents and pay the requisite fees to keep your trademark registration active.

   • While you aren't required to register your trademark with the USPTO to get intellectual property rights in your trademark, registration provides a number of advantages including the right to sue in federal court and a legal presumption that you are the rightful owner of the mark.
   • If someone is using your trademark without your permission, you must sue them to protect your rights and enforce your intellectual property rights. The USPTO doesn't police your mark for you or enforce your rights against infringers.
   • You can lose trademark protection if you allow non-trademark use to the point that the word or image becomes generic – that is, people associate it with the product in general more than with your specific brand. For example, although aspirin used to be trademarked, the word over time came to be used generically to mean any pain relief medication, and lost its trademark protection.
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Method 3

Method 3 of 3:

Applying for a Patent

1. 
   1
   Consider hiring an attorney. Patent examiners expect non-provisional patent applications to be written and compiled in a certain way, using a lot of arcane language that you probably don't know.

   • For this reason, the USPTO recommends hiring a patent attorney or registered agent to draft your non-provisional application so you can avoid wasting time and money on an application that turns out to be incomplete or incorrect.
2. 
   2
   Understand what patents protect. Before you go through the trouble of applying for a patent, make sure a patent will provide the intellectual property protection you need, and that your particular intellectual property isn't better protected either by copyright or trademark.

   • For 20 years from the date the patent application was filed, you have the right to exclude others from using, making, selling or importing your invention. This means if someone does any of those things without your permission, you have the right to sue them in federal court.
   • Utility patents, which protect a process, machine, or other manufactured items, are the most common, and the patents with which people are most familiar. A new hand tool would be subject to a utility patent, as would a computer application that performed a certain process for a machine. Design or plant patents also are available.
   • Patents protect useful objects, not the words or pictures that may appear on or within them.
3. 
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   File a provisional application. You can buy time to draft your non-provisional application by filing a provisional application, which allows you to take up to 12 months to file the full application while still taking advantage of the earliest filing date.

   • Since U.S. patent law grants priority to earlier applications filed, your provisional application filing date can protect you against competitors developing similar technology.
   • Provisional applications are cheaper to file, and don't have the same degree of complication or technical specification that non-provisional patents do.
   • After you file your provisional application, you can use the phrase "patent pending" to indicate that you have intellectual property rights in your invention.
   • Your provisional application must include a written description of your invention along with the names of the inventors. The application must be accompanied by a cover sheet that provides names and contact information for the inventors, the title of the invention, and identifies any agents or attorneys who helped you prepare the application.
   • You can file your application using the USPTO's electronic filing system, or you can mail a paper application.
   • Filing fees for a provisional application may be as low as $65.

4. 
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   Conduct patent searches. Before you file your non-provisional application, you would be wise to conduct a complete search of "prior art" to make sure no one else has already patented or otherwise disclosed an invention that is identical or similar to yours.

   • If you find a similar invention, anywhere in the world, you must be able to differentiate your invention from the earlier one in the section of your non-provisional application covering prior art disclosures.
   • You also must review other patents and publications in your industry to make sure your invention is not an obvious change or combination of existing inventions. The USPTO won't approve patents for technology that would have been obvious to other inventors in the same field.
   • A patent attorney or other agent licensed to practice before the USPTO can help you conduct a thorough search of prior art before you spend the time and effort drafting your non-provisional application for something that would not qualify for a patent.
5. 
   5
   Draft your non-provisional application. Your complete application will contain a number of forms that must be included when you file. You can download these forms from the USPTO's website.

   • You must complete forms including application transmittal and fee transmittal forms, an application data sheet, specification forms, and an oath or declaration page.
   • The specification forms constitute the bulk of your application, and include detailed drawings and descriptions regarding your invention and how it is made or used. In addition, you'll provide a background and summary of your invention, the claims you're making in the invention, and disclosures of prior art.
   • Once you file your application, you generally cannot add any "new material" to it, so it is important to include everything necessary. Don't forget to properly cite any of your relevant provisional applications that have not yet expired.
6. 
   6
   File your non-provisional application. Once you've completed your application, you must file it with the USPTO to begin the process of getting intellectual property rights in your invention.

   • If you're planning to file electronically, you must first determine your processing fees and apply for a customer number and a digital certificate.
   • Your processing fees will vary depending on the number of claims you have, and the total amount may be reduced if you qualify as a small or micro entity. Individuals or companies with fewer than 500 employees are generally classified as small entities. Small entities that have filed fewer than four non-provisional utility patents and have income below a certain level qualify as micro entities and pay even lower fees.
   • After you've filed your application, you can use the calculator provided on the USPTO website to estimate how long it will take before a patent examiner takes action on your application.
   • In the mean time, your application will typically be published 18 months after your filing date, disclosing your invention to the entire world.
7. 
   7
   Work with the patent examiner. Your patent examiner will review your application and may object to the form or reject your claims. Although you may argue the patentability of those claims with the examiner, it is common to amend the claims within the scope of the existing specification, with the aim of having them allowed.

   • Keep in mind that it could take years for you to hear back from a patent examiner regarding your application, depending on the type and complexity of your invention.
   • After you receive the first action from the patent examiner explaining which claims are lacking, you have a maximum of six months to file a response and argue the patentability of your claims or to delete or amend some of them.
   • If the examiner twice rejects any claims, he or she can make the rejection final. At this point, you still have the ability to cancel or amend claims to accommodate the examiner's concerns, or you may appeal their final rejection.
   • Provided you overcome the examiner's objections, your patent will be issued as soon as you pay the required issue and publication fees.
8. 
   8
   Maintain your patent. Once your patent is granted, you must pay periodic maintenance fees to keep your protection active.

   • These fees are due 3.5, 7.5, and 11.5 years after the date your patent is granted. the amount of fees varies each year, and is reduced for small and micro entities.
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Tips

• Trademark registration in the USA is completely optional, but state or federal registration does give the owner valuable additional rights and visibility within the market.
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• A patent attorney or agent may be asked to draft or review your provisional patent applications to better ensure they will serve the purpose of full disclosure and enablement of the inventions you plan to claim in later applications.
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• There are ways to avoid having your pending non-provisional application published, if that is a concern.
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