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Patent Pending

Patent Pending

Patent pending : protecting your ideas

Patent pending in the US is a bit like common-law marriage in the UK - its only weight lies in the fact that people think it exists. Legally speaking, both these concepts are phantasms. Under US law your patent doesn't exist until your patent exists. But patent pending does mean something, because once you have filed an application you have priority over anyone else subsequently trying to patent the same thing. And there is also such a thing as a provisional patent: you can file a fairly unspecific version of your application and you then have a year to formalize it. It costs about a quarter of the price of a formal application, can be updated through the year, and takes priority over any subsequent filings by competitors. It's essential to file a full application within the year, though. If the provisional one expires, you lose all priority. There are also important laws relating to your use of the invention during the patent pending period. For more information on patent applications, provisional or otherwise, the first port of call is the US patent office (www.uspto.gov).


But patents aren't the only way to protect your intellectual property, and might not even be the most suitable. Copyright, for example, exists as soon as you generate an original work of art in a reproducible form, be it a book, a piece of music, a painting or a computer program (although the last is a bit less straightforward). It is just what the name suggests - a right over the copying of your work. You don't have to apply for it, it just happens. But that simple fact masks a morass of legal complications and pitfalls. Firstly, although you have automatic copyright of your original work of art, in the case of any copyright infringement you will have to prove your authorship. That involves keeping a record of the development of the creation (the old chestnut for dating it is posting it to yourself) and then, to be completely sure, registering your copyright officially. That's particularly important if there's a danger of someone stealing your work - everyone knows the horror stories about books, film scripts, etc.

The second major complicating issue is copyright infringement, i.e. whether someone has copied you (or you have copied someone else). In contrast to patents, copyright doesn't protect concepts and ideas as such, rather how they are played out. To some extent that's necessary for freedom of expression. If the basic plot lines of a play, for example, could not be reproduced, there would be an awful lot less theatre - and Shakespeare could have been sued by Boccaccio. Likewise the facts in news reports. It's the bit which is the unique (and detailed) invention of the author which is copyrighted. But like their subject matter, judgements on copyright infringement are more of an art than a science. Take the attempted suing of Eminem by a disgruntled former schoolmate. Indeed, the judge in this case turned her ruling into a literal piece of art - a rap (her children must have been so embarrassed). Ownership of copyright can also be a complicated issue. For these reasons and more it is a good idea to get expert advice if you have created something which you want to show the world.