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Prior art to be considered when filing a patent application (Prior art)

In the United States, patents are the right to create a monopoly given by the US government for 20 years in exchange for inventors inventing new technologies and transferring new inventions to the public sphere. No patents are granted for prior art already known to the public societies. Prior art means technology known to the public before the patent application is filed by the inventor.

Under the America Invent Act (AIA), which was introduced on March 16, 2013, the US patent law was amended to make it easier to understand prior art. For example, all of the techniques that an inventor has already published before filing a US patent are prior art. However, if the inventor himself / herself announces before the inventor applies for his patent, a grace period of one year shall be granted. A one-year grace period is also granted when an inventor and other co-inventors and co-owners give notice. The announcements made by AIA are comprehensive and include several ways of publication, including publication, use, sale, marketing, and patents. In other words, if a third party announces or uses the invention of the inventor first, the action taken by the third party becomes prior art and can invalidate the patent right of the inventor.

Therefore, it is possible to stop the patent rights of a third party by granting a one-year grace period because of the application of the patent or the announcement of the patent in the law. However, if a third party considers the announcement after relying on a one-year grace period after making the announcement, the inventor who has relied on the grace period after making the modified invention or the advanced invention, Because of the lack of rights, the patent rights are subject to much moderation. To avoid this situation, it is desirable to apply for a patent only at once.

If there is a temporary burden on a non-provisional patent application (usually a patent application), it is better to secure the inventor's rights first because of the provisional patent application. Based on the provisional application, it can prevent the third party's prior application because it acquires the right after continuation application (continuation application) and continuation-in-part (partial continuation application).

Prior to March 16, 2013, prior art analysis was complex. Prior art defined by the statute is the case where an inventor made the same invention, used / published / publicized / patented before the invention, or was published / noticed one year before the US filing date regardless of the area to be. It is a very confusing phrase. For example, if no clear evidence is available, the inventor must demonstrate the inventor's time, and the inventor must demonstrate the inventor's timing. Since a one-year grace period is granted without condition, even if there is a diligent prior application of a third party, a person who rely only on a one-year grace period and acquire a patent can acquire a patent. In addition, since the selection of others in the United States is regarded as a prior art, it is difficult for the inventor to avoid the claim of the selection of another person after the patent application. In this way, there was a lot of confusion because the US patent law was much different from the patent law of other countries.

Fortunately, the introduction of AIA has made the concept of prior art easier, but if the patent filing date in the US is before March 16, 2013, the prior art scope defined before the AIA should be analyzed. Therefore, it is necessary to analyze the prior art after analyzing the US patent application date and the prior filing date for the correct response.

John K. Park Attorney at Law

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I heard there are two methods of US trademark registrations. How each trademark registration method different? There are two types of trademark registrations that the United States Patent and Trademark Office's US Trademark Office will allow.

The first is the universally understood Principal Registry , and the second is the Supplemental Registry. These two trademark registrations are recognized by the US government and can be guaranteed trademark rights. You can use the lawsuits and administrative litigation in the US federal courts to stop the use of trademarks that may be confused with others, and you are also entitled to damages. In addition, if you register both of these trademark registrations, you will be prevented from applying to the Patent Office for trademark registration by anyone else in the future.

The most important difference is that the trademark right registered in the Principal Registry gives the trademark owner a presumption of validity for the trademark right in the government, but the trademark right registered in the Supplemental Registry is not We do not grant presumption of validity for trademark rights. Therefore, the trademark right registered in the Principal Registry must be proved without the proprietor's right in the lawsuit, so the defendant must prove that he has no rights in the trademark, but the trademark registered in the Supplemental Registry is not The owner must first prove that the registered trademark has trademark rights.

The importance of the Supplemental Registry is that it is possible to register trademarks that are difficult to claim as trademarks because of the limited rights of the trademark.

For example, (1) a merely descriptive mark is a trademark that may possess the characteristics of a trademark in the future, (2) a person's gender Sir name, (3) geographic term, and (4) trade dress. The significance of the Supplemental Registry is that when a trademark is registered with the USPTO, the trademark that may cause confusion is applied to the USPTO to prevent it from going through the review process, and over time, the trademark will have a secondary meaning or acquired distinctiveness Which allows us to make claims to the Principal Registry when we can be recognized. Generally, if a trademark is used for no more than five years with a third party, you may be entitled to claim the Principal Registry.

Even if a trademark registered in the Supplemental Registry can not be registered in the Principal Registry because the trademark is used as the trademark registered in the Principal Registry, It is important to consider this.

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We operate business related to clothing manufacturing and import. What legal measures should be taken to prevent competitors from imitating the design of the garments we handle at our company?

Apparel products have various designs due to their characteristics. Especially, consumers tend to buy products by design rather than the characteristics of products such as fabrics, and design is the key to competitiveness of apparel products. It is difficult to create an original design, but it is easy to make a copy of an apparel product, so there are a lot of problems of imitation and there are many types of designs. There is a possibility of a dispute that infringes copyright.

Clothing design is mainly protected by copyright law. Copyright occurs at the same time as the creation of the design and is protected during the life of the author and for up to 70 years after death. In the case of an employment, the employer has the copyright and the copyright is protected from the first publication until the end of 95 years or 120 years from the creation.

Designs that are problematic when imitation problems are not the same, but copyright is also protected in substantial similarity. However, there is no general and objective criterion, since the judgment of a similarity is ultimately determined by a judge in a court of concrete design. When another person infringes copyright, the copyright holder may file a civil lawsuit in the Federal District Court. In the case of willful infringement for profit, criminal investigation may be initiated.

In this way, the generation of copyright is simple and the duration of rights is long, but in order to actually exercise rights, it must be litigated and it is difficult to judge whether the rights are applied. For effective protection of complex and mobile copyright, joining liability insurance, which includes advertising injury provision as a policy, may be a way of preparing.

The liability insurance company defends or pays the insured if a lawsuit is filed under the policy. According to the precedent, the insurer's obligation arises even if there is a mere possibility that the insurance protection will apply, and it will occur immediately when the policyholder becomes aware of the possibility and will continue until the related litigation is concluded. This insurance is a great help in protecting design, overcoming the uncertainty of copyright lawsuits or trademark lawsuits and protecting rights through legal means.

John K. Park Patent Attorney