An Explanation and Infographic Review in Brief
By Dr. David Edward Marcinko MBA
In the US, a patent is restricted to inventions granted under federal statute. The specific attributes are called claims. A patent gives the inventor the exclusive privilege of using a certain process or of making, using, and selling a specific product for a specified period of time. In 1980 patent coverage was extended to genetic engineering. It is granted upon filing an application, payment of fees, and after a determination that the invention new and useful. A patent number is granted to the patentee and his/her heirs and assignees for a period of 17 years. In the case of design patents, the period of the patent is 14 years. If two or more parties make an invention jointly, they must apply jointly. If the inventor dies or becomes disabled before making application, a legal representative or guardian may do so. Patents may be transferred from one party to another. Copies of US patents may be purchased from the Patent and Trademark Office in Washington, DC.
A trademark is any symbol, word, number, picture or design used to identify goods and services and distinguish them from others. A trademark identifies a service or product and fixes responsibility for its quality. If customers or patients like them, the trademark identified what to purchase in the future. If disliked, goods and services are avoided with that trademark. The name of a type of product cannot be a trademark, because every maker is free to use its’ name. Dr. Mary G. Jones, for example, may be a well-known trademark for her medical specialty device, but no one can have trademark rights to the words “Dr. Mary G. Jones.” On occasion, however, trademarked words become generically used. Such words lose their legal status as trademarks. Examples include aspirin, cellophane and escalator. An important condition with trademarks is they are not confusingly similar to one previously registered in the US. Upon approval, the trademark is published in an official gazette to enable objections to be heard in an opposition proceeding. Registration lasts for 20 years and may be renewed for as long as the trademark is in use. Once a federal registration has been obtained, the owner may give notice by using the registration symbol ® next to the trademark.
A trademark may become the valuable property of a physician because it is the symbol of the practice’s goodwill and of its healthcare products and medical services. Thus, a trademark can be sold or assigned when a practice and its assets are sold. It can also be licensed to others to use as long as the owner exercises control over the quality of medical goods or health services supplied by the licensee.
Are similar to trademarks, expect they represent largely cognitive and intangible services.
A copyright is a body of legal rights that protect creative works from being reproduced, performed, or disseminated without permission. The owner as the exclusive right to reproduce a protected work; to prepare derivative works that only slightly change the protected work; to sell or lend copies of the protected work to the public; to perform protected works in public for profit; and to display copyrighted works publicly. The term “work” refers to any original creation of authorship produced in a tangible medium. Works that can be copyrighted include medical practice brochures and marketing pieces; medical photographs, healthcare drawings and diagrams; practice advertisements, websites, blogs, wikis, web-casts and pod-casts; and radio and television practice advertisement, etc. Copyright does not protect the idea or concept; it only protects the way in that an author has expressed an idea or concept. If, for example, a doctor publishes an article explaining a new process for making a medicine, the copyright prevents others from substantially copying the article, but it does not prevent anyone from using the process described to prepare the medicine. In order to protect the process, the doctor must “fix” the work and obtain a patent. For works created after January 1, 1978, copyright becomes the property of the author the moment the work is created and lasts for the author’s life plus 50 years. When a work is created by an employee in the normal course of a physician’s job however, as with an HMO or employed physician, the copyright becomes the property of the employer and lasts for 75 years from publication or 100 years from creation, whichever is shorter. The 1978 act extends the term of copyrights existing on January 1, 1978, so that they last for about 75 years from publication.
Although copyright becomes effective when fixed on creation, it may be lost unless a prescribed copyright notice is placed on all publicly distributed copies. This notice consists either of the word Copyright, or the symbol ©, accompanied by the name of the owner and the year of first publication (© John Doe MD, 2011, all rights reserved, USA). The use of the notice is the responsibility of the copyright owner and does not require advance permission from or registration with the Copyright Office. But, a work is not fully protected until a copyright claim has been registered with the Copyright Office in Washington, DC. To register, the author must fill out the application, pay a fee, and send two complete copies of the work which is placed in the Library of Congress. The sooner the claim to copyright is registered, the more remedies the author may have in litigation, if challenged. And, an author who types a story on a computer keyboard and stores it on a tape, disc drive, thumb-drive, virtual memory mechanism or cloud grid, has “fixed” the work sufficient for copyright protection [United States Patent and Trademark Office www.USPTO.gov
Infringement is any violation of the rights above that produce an unauthorized copy of a copyrighted work. Infringement does not necessarily constitute word-for-word reproduction; “substantial similarity” may also be infringement. Generally, copyright infringements are dealt with in civil lawsuits in federal court. If infringement is proved, the court may order an injunction against future infringement; the destruction of infringing copies; reimbursement for financial loss; transfer of profits; and payment of fixed damages for each work infringed, as well as court costs and attorney’s fees.
Fair Use permits the reproduction of small amounts of copyrighted material when the copying will have little effect on the value of the original work. Examples of fair use includes the quotation of excerpts from a book or medical journal; quotations of short passages in a scholarly books to illustrate or clarify the author’s observations; use in a parody; summary of a speech testimonial or article; and reproduction by a teacher or student of a small part of a work to illustrate a lesson. Because works produced and published by the US government cannot be copyrighted, material from the many publications of the US Government Printing Office may be reproduced without fear of infringement [United States Patent and Trademark Office www.USPTO.gov
Trademark [infographic] Review
Trademarks, patents and copyrights can be a little confusing. Knowing the difference between them is very important for securing your medical practice, advisory or accounting firm, or healthcare business’s ownership of products and brands. That poses the question:
Are you protecting your brand? Obtaining a federal trademark on your business name is serious business (no pun intended). www.gerbenlaw.com created the following infographic to help business owners and entrepreneurs understand what is needed to register a trademark
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Physician Advisors: www.CertifiedMedicalPlanner.org
Filed under: CMP Program, Practice Management | Tagged: certified medical planner, fiar use, Patent and Trademark Office, Patents, service marks, Trademarks and Copyright, United States Patent and Trademark Office, www.gerbenlaw.com, www.USPTO.gov |