Before you can claim intellectual property (IP) protection for your invention, you must first ensure that no one else has done so. Even if you do not plan to apply for IP protection, you must ensure that you will not infringe on the rights of others before using, manufacturing, or selling a new work. This is accomplished by exploring multiple databases and publications for comparable intellectual property.
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Doing Your Own Search
Since patent, trademark, and copyright information is public record, you may search the relevant databases yourself. Government databases are also accessible online.
Yet, doing patent and trademark searches is not always simple. Comparable ideas, particularly patents filed decades earlier, may be characterized using a variety of phrases. You don’t have to travel back more than 20 years to prevent patent infringement, but it’s worth it to make sure your innovation is patentable. You may need to assess whether a common law search is suitable for a trademark.
A comprehensive patent search encompasses all “prior art,” such as granted patents, published applications, and innovations mentioned in other sources, such as journal articles or other literature. You will also need to locate comparable innovations as well as identical ones.
You may start your search in a variety of places:
The USPTO (United States Patent and Trademark Office) –
Patents and published applications are stored in two databases that are available through the USPTO website. You must first select classes and subclasses for your innovation before doing a search using a range of keywords to discover all relevant papers. To assist you in your search, the site provides assistance guides and tutorials.
Patent and Trademark Resource Centers – They are located in libraries around the nation and have qualified employees that can provide expert search help.
Google’s Patent Search – Its data is sourced directly from the USPTO and European Patent Office databases, and you may search by keyword, inventor name, and other parameters. You may also do a previous art search right here.
Journal articles and other reliable sources in your field may assist you in locating previous art.
Searching for Trademarks
With the USPTO’s Trademark Electronic Search System, you may locate federally registered marks and pending applications (TESS). The findings also indicate if a mark is still active (registered) and provide a link to further information about it in the Trademark Status & Document Retrieval System.
You may also utilize a search business, such as Trademarkia, to start your search for free and subsequently pay the company to submit your application. The cost covers a comprehensive trademark search.
The USPTO does not consider common law marks while reviewing your application; nevertheless, if a mark identical to yours is already in use in a geographical region where you want to conduct business, you may be unable to use yours there. You may look for common law applications of your desired mark on the Internet, in state trademark databases, and in relevant industry journals or databases.
A copyright search is a bit different since you’re probably seeking for the copyright protection status of a particular work you want to utilize a piece of, rather than comparing your work to what’s already out there.
Yet, if you need copyright information, the Copyright Office is the place to go. Its online database contains registration and renewal information dating back to January 1, 1978. To discover information on works registered or renewed before to 1978, use the Library of Congress’ copyright card catalog. If you are not in the neighborhood, Copyright Office personnel will do a search on your behalf for an hourly charge.
If You Come Across Comparable Intellectual Property
If no matching IP is found, you are allowed to use, produce, and/or sell your work while filing for protection. If you come across identical works, you may be allowed to utilize and perhaps protect yours under specific situations. Here are some examples:
Your innovation differs from comparable inventions in subtle ways.
Your trademark pertains to a whole distinct product or service.
The innovation was either never patented or its patent protection has expired (you may legally use it but not patent it).
The trademark has been declared dead by the USPTO (be sure it has not been revived).
You have no plans to do business in an area where a comparable common law mark is currently in use.
You may use the work if your copyright search reveals that it is in the public domain. If the material is copyrighted, you must get permission, such as via a copyright request, unless your usage falls under fair use, such as educational or commentary purposes.
Dealing with a Lawyer
As you can see, database searches, particularly patent searches, may be difficult. If you’re feeling overwhelmed or uncertain that you’ve done a thorough search, it’s a good idea to visit an attorney who specializes in the area of intellectual property law in which you’re interested.
An attorney may also assist you in evaluating the IP you do locate to see whether it is sufficiently distinct to warrant protection and to assure you are not infringing on someone else’s IP.