Patent - An Alternative To Getting One

In this article we're going to discuss an alternative to getting a patent for your product or method called the defensive publication.

The truth about getting patents is that it is a form of risk management for a company or individual. To give an example, a company that failed to get a patent may lose control of the main technology that the company uses to conduct business. It is also vulnerable to a lawsuit and strict licensing terms. Because patents are so important to a company and its operation, many companies form what is called a license review board to determine the cost involved with obtaining a patent for the product or technology. If the board finds enough evidence to warrant obtaining a patent it then discloses its findings to the CEO of the company.

However, there are going to be times where the cost and risk factor of trying to obtain a patent are too great to warrant going ahead with trying to get one. In this case an alternative form of risk management should be sought. One of these alternatives commonly used by companies in this situation is called the defensive publication. This is used especially when the alternatives are limited or the patent process would be too difficult to prove.

According to U.S. patent law, a printed publication with a publication date prior to what would have been the effective date of the patent could be used to invalidate that patent if claimed by another company. This publication can be used as a defensive measure to describe whatever technology it has created. Once this publication is released, the competing company would have to consider this publication as prior art. The company releasing this publication is given a certain degree of protection. The company can use this publication as a shield against another company suing them for using this technology. This will, in most cases, discourage the other company from going ahead with the lawsuit because of prior art laws.

To qualify as this type of publication there are a number of things that have to exist. For one thing, the publication must have been available to the public in general. It must describe the technology specifically and the date of the publication must be before the date of the patent that was issued to the competing company. This involves two criteria which are accessibility and dissemination.

Accessibility is the issue of whether relevant members of the public could obtain the publication if they wanted to. If this is proven that they could have had access to the publication then there is no need to actually show them the publication. Just the fact that it existed and was accessible is enough.

Michael Russell
Your Independent guide to Patents

Domain Name Trademarks

As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

What Is A Trademark?

A trademark is a distinctive item that is used to identify a logo, product, device, package or service. The trademark identifies the item as being provided by a particular firm. To protect these items you can obtain a mark from the patent and trademark office that prohibits others from trying to gain economic advantage from your mark.

Domain Name

The patent and trademark office views domain names in a unique way. The office views the http://www element as a part of the file transfer process, not your domain name. The .com, .net, etc., designations are considered top-level domain identifiers and are also disregarded for the purpose of a domain name trademark. For example, our domain name is http://www.sandiegobusinesslawfirm.com. If we submitted the domain name for registration, only the sandiegobusinesslawfirm portion would be considered for a mark.

Locators Cannot Be Registered

A domain name is a locator for file pages. When you type in your domain name, a server locates and displays files. If a domain is used solely for this purpose, it will not be granted a mark. Instead, the domain name must be incorporated into the site. For instance, Amazon is recognized as an online bookstore and the site actually has the word Amazon on every page. Since "Amazon.com" is more than a locator, Amazon can apply for and receive a trademark. If Amazon used the domain name, bookstore.com, the company would be able to register Amazon, but not bookstore.

Generic and Descriptive Terms

Domain names that are generic or descriptive in nature cannot be registered because they fail to designate a distinctive product or service. For example, sandiegobusinesslawfirm is comprised of generic terms and describes who and where we are, to wit, a San Diego business law firm. This domain name cannot be trademarked. The same result would occur with bank.com, book.com, advice.com, etc.

You may be thinking, What about Coke? "Coke" is a trademarked term because it is a distinctive term for a soft drink product. It just so happens that a brilliant marketing plan has convinced most people to refer to soft drinks as cokes, even if they actually prefer another brand!

Trademarks are an important factor in protecting your Internet business. Armed with a trademark, you can keep competitors from pulling traffic off the search engines when people search for your site.

Richard A. Chapo is with SanDiegoBusinessLawFirm.com - This article is for information purposes only. Nothing in this article is intended to address the readers specific situation nor does it create an attorney-client relationship.