Substantive law

Under Title 35 of the United States Code, the patentability of inventions is defined under Sections 100-105. In Section 101, it sets out the subject matters that can be patented; section 102 defines the term novelty and loss of right to patent, section 103 lists what is the non-obvious subject matter in the constitutes (Beattie, 2008). Procedure The patent applications are publish by the United States Patent and Trademark Office 18 months after they are completely filed. Under certain circumstances the time limit can be extended for an additional fee.

The applications are published before the patent has been granted on them (Muir et. al. , 1999). International Trade Commission (ITC) In the United States, a patent holder has the right to pursue a cause of action in the International Trade Commission (ITC) instead of, or in addirion to the court system. In opposite to courts that have a wide range of remedies at their disposal, the ITC can do only one thing when it comes to the infrigemention of patent, it is to grant or deny injunctive relief by ordering to keep the infringing products from being imported into the United States.

In other cases, it may provide a quicker solution to the problems of the patent owner (Khona, 2000). United States Trademark Law United States is traditionally protecting trademarks only under the States common law, growing out of the tort of the unfair competition. As early as 1791, Thomas Jefferson proposed that the mark of the sail cloth makers must be protected under the Commerce Caluse, but it is not until 1870 that the Congress attemped to built a federal regime for the trademarks’ protection.

The statute, purported to be the exercise of the Copyright Clause powers, was struck down in the Trade-Mark Cases, which leads the Congress to create a successful act under its Commerce Clause power in 1881 (Larson, 2003). The revision of the act was made in 1905, and in 1946, it passed the Lanham Act , which defines the federal protection and the registration for trademarks, it was administered by the United States Patent and Trademark Office (USPTO). The State law is continuing to add its own protection, complementing the federal system (Anonymous, 2006).

Obtaining a trademark Trademark can be use in the normal course of business or by filing the application for registration of the mark in the USPTO are the rights of a person or busines. The registration application can be based upon the actual use in commerce or upon bonafide intent to use (ITU). The ITU application is not really registered until documents that can be use as evidence in the actual use of the mark in the interstate commerce, it must be shown within a given time period. Infringing can only be stopped with the actual registration, not an ITU.

The ITU is use to establish priority-who will be granted the right to use the mark first- and infringers are on borrowed time pending that registration (Hoffman, 1998). An individual must represent himself before the USPTO in attempting to register a trademark. But, there are several pitfalls that can tarp someone who has no experience in the trademark prosecution matters. $800-$1500 is charge for an experienced attorney who is specialized in the registration of trademark; the charge is for the preparation and filing the application for the registration of trademark.

There will be additional fees for attemping to overcome such rejections, if the application is rejected because the mark is deemed descriptive or generic (Hoffman, 1998). The U. S. law provides a fair use defense to the infringement of trademark comparable to the copyright law. Using the trademark actually refer to the trademarked product or trademark owner, and the use of the mark in its common sense, like a desciptive word or common and not original symbol are the two categories of the protected usage (Hoffman, 1998).