Got a great idea? Now patent it

by Chris Markham. 0 Comments

So you have a great idea a killer app for the iPhone, a fantastic advertising phrase, a new way to clean the house or a novel gizmo that will make washing your car easier, and you want to be able to patent the app, phrase, technique or gizmo. It really isnt as hard as it looks, but it can be pretty difficult if you dont know what youre doing.

By the way, there was an interesting little fracas about patenting a few years back. It appears that no one had thought to patent the pumping motion a child uses on a swing. Of course, I would have no idea why one would ever think to patent that, but, in any event, the motion was free for anyone to use. Just walk by your neighborhood park on a sunny afternoon plenty of kids (and some teens) inherently know how to swing on a swing set.

Looking to make money off the idea, a gentleman decided to patent the way his son utilized a swing, with the idea that he could go to playgrounds across this great nation and have all the children either stop swinging on the swing sets, or stop momentarily, pay him some royalties, and go back to having childlike fun on likely the most cherished piece of playground equipment.

I believe the Patent and Trademark Office allowed him to go through with it, but informed him that the ability to collect royalties on his invention would be far too difficult, and he would never receive a penny for his inventive flaunting of the literal rules of the United States Patent and Trademark Office.

Now back to my regularly scheduled column. To patent that app, phrase, technique or gizmo, you need to go to the U.S.P.T.O. website to see if what you want to register has indeed already been registered. If it hasnt, begin to use the or the right away, any time you present your idea.

This shows the general public that you have dominance over the idea, and that others should, as of that very moment, no longer look to trademark or patent it. It also looks good if, during the public comment phase that you have already engaged in this behavior it shows that you did coin the mark and that you are already exercising your control over same.

Once youve asserted your dominance, go back to the U.S.P.T.O. website to fill out an application. This can be a bit of tricky business.

The U.S.P.T.O. went paperless a while back, so everything must be done electronically. This is not to say that you cant file actual paperwork. However, there is a surcharge for paper filings a charge that you can save by filing electronically (and which you will need, as filing can be fairly costly). Once the application is filled out, you will have to wait about three to six months for the administrators to review your application, ask questions if they want and then to publish your idea, word, gizmo, whatever, in the Federal Register.

Your idea needs to be published in the Federal Register for roughly three reasons.

First, it places the general public on notice that your idea is undergoing the patent application process.

Second, if there are any objections to granting you a patent for your idea, there is time for the general public to comment on whether or not granting you the patent is a good idea.

Third, publication allows for anyone else who has something similar or identical to your idea notification that they have been beaten to the post that, unless they alter their idea in some way to make it somewhat different from yours, a patent for them will be lost.

Finally, be aware that there are only certain things you can trademark. You cant trademark something that is in common usage, such as the word the.

You also cant trademark an individuals name for use on a slogan or a website or a business. A few years ago, that was all the rage trademarking a name such as Jim or a word like Movie and then trying to collect money from businesses and products that have those words in their names. A case went all the way up to the Supreme Court regarding this disfavored practice and, as if you had to guess, the method was frowned upon.

Just one more thing before you start: Getting a trademark can be relatively easy once you get the hang of it. But remember, it may take longer to actually get the trademark than it did to come up with your idea. Dont say I didnt warn you.

Christopher L. Markham is a general practice attorney based in Frederick. He can be reached at

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