The Basics of Intellectual Property in Wisconsin

If you are an inventor or business owner, then you possess some type of intellectual property. Understanding how the different terms and laws fit together can sometimes be challenging to protect someone’s idea. Intellectual property comes in many forms, with many requirements to “stake your claim” legally. In addition, if someone takes your intellectual property, you must act to defend it. Otherwise, that person could profit illegally from your hard work. Read on to learn more about protecting your intellectual property in Wisconsin.  

Intellectual Property-A General Primer:

Intellectual property is an extensive term that encompasses many different forms. Generally speaking, intellectual property is a property that springs out of a creative idea like a design or a story. It is a property that is created in the mind of a person. How intellectual property is classified and protected by law is a very complex area with its own procedures and vocabulary. While it can seem very intimidating at first, as you begin to become familiar with the process, it will hopefully seem less daunting.  

Patent

A legal tool used to protect intellectual property for a period of time. The patent protects the idea, design, or invention from others taking it and using it for profit. A patent could be licensed out if the holder of the patent agrees for profit. It is typically used for processes or designs. When a party wants to patent something, a thorough technical explanation for the design or process must be included in the patent application. There are three types of patents you can apply for, depending on your idea.  

Copyright

A legal tool typically used for more artistic, intellectual property. Any artist or creator who creates something unique and “fixes it” is a copyright holder. The copyright gives the holder the exclusive right to republish the words or pictures at their discretion but prohibits others from doing so without permission. The copyright can be enforced as soon as the artist’s work becomes affixed, either in written or visual form. Copyright ownership can also be created through contract or through wills and trusts, passing it on to a beneficiary.  For more information on copyrights in specific read our article Copyright Infringement in Wisconsin.

Fair Use

Fair use is a doctrine that allows others to use material protected by copyright. Some examples of fair use would be the reproduction of a copyrighted passage of text or illustration for educational use or an article that critiques a painting that includes an image. Fair use is a defense to a legal claim of copyright infringement. If the copyright owner sued you, you must prove that the work was reproduced for “fair use.”  

Trademark

A tool used to protect a symbol, logo, word, or words used in relation to a company. It is legally claimed by the company. An example would be the Nike “swoosh.” The trademarked item is closely tied to whatever good or service the company provides. You can use the “TM” when you have trademarked goods or “SM” when you have a service mark for services. A trademark can be informally used in a smaller geographic region. If you want your trademark to be protected nationwide, you have to register that trademark with the United States Patent and Trademark Office.  

Intellectual property law is the group of laws that dictate the use of patents, copyrights, and trademarks, as well as governs disputes regarding patents, copyrights, and trademarks. The majority of these laws are federal.  

Intellectual Property in Wisconsin

If you are an artist or business owner in Wisconsin, you most likely have intellectual property. If you want to keep your intellectual property safe in Wisconsin, it will be important to know the best means of accessing the proper information and forms necessary to legalize your ownership of intellectual property.  

Intellectual property laws are federal laws. The state of Wisconsin does not have statutes relating directly to claiming intellectual property ownership because the federal laws are already in place. If you are a resident of Wisconsin looking to formalize your intellectual property ownership, you would need to start with the appropriate federal processes.  

How Do I Get A Patent In Wisconsin?

To get a patent, you must go through the United States Patent and Trademark Office, a federal government entity. The United States Patent and Trademark Office, or USPTO for short, is the repository of all patents and trademarks in the country. The USPTO also standardizes the application process and maintains records of everything that has already been patented. This record is maintained to prevent the attempted patenting of ideas for designs and processes that have already been filed by another person or business. Ideally, this process will prevent litigation in the future, where two parties will each claim ownership of an idea or process that each party had at a different time.  

First, you must decide if your idea is a suitable one to be patented. It may be that a different type of protection, such as a trademark or formalized copyright, might be more suitable. Once you have confirmed that a patent is the right type of protection for your idea, you have to conduct a search. It is essential that you not spend time and money trying to patent an idea that has already been patented. This is the point where a licensed patent law attorney can be of great assistance to you.  

Not many lay people know this, but there is a separate, additional bar exam for patent law. In order to become a patent law attorney, the attorney must have already passed the regular bar exam in a jurisdiction (state) and have an undergraduate degree in one of the pre-approved scientific courses of study as well as a law degree before the USPTO will allow that attorney to apply to take the patent bar. Upon passing the patent bar, that lawyer is allowed to practice patent law. A patent law attorney is an invaluable resource to a private inventor or business who has an idea or process to be patented. With a background in science and technology, the patent law attorney will be able to effectively assess your design and make sure that nothing like it exists in the record, clearing the way for your idea to be protected.  

You are allowed to conduct the search yourself; in fact, you are allowed to conduct the entire process yourself, but as in most things that involve the law, it can be incredibly confusing for people who don’t speak the language or understand the requirements. It’s worth your time to at least consult with an experienced patent law attorney. Additionally, getting an idea patented requires that you understand the USPTO’s Patent Classification System in order to properly identify your idea.  

Once the search has been completed and the potential patent classified, you must select what kind of patent you want. Without going too in-depth, you will need to decide if you need a utility patent, a design patent, or a plant patent.  

Once you have identified what kind of patent you need, you apply for the patent. You will need to submit the proper forms and pay several types of fees in order to move through the system. This process will most likely be expensive and time-consuming, so be prepared for it. There are links to the forms you need as well as fee schedules on the USPTO website if you choose to try and patent an idea yourself. If you want to patent your idea globally, there are options for international protection.  

Once your application is submitted and all fees paid, the USPTO will assign you an examiner. The role of the examiner is to make sure that your application is complete and to establish deadlines for fixing any errors in your application process. If you do not cooperate with your examiner, your application will be rejected. If you have a patent attorney or agent helping you, the examiner will only communicate with them about your application.  

If the examiner is satisfied with your application, you will receive approval for your patent. Approval means that the USPTO will send you something called a notice of allowance. There will be fees listed in the notice that you must pay prior to the patent being granted. Once you pay the fees, the patent will be issued and a copy mailed to you.  

Once you have your patent, it is your responsibility to maintain the patent. You may be required to pay regular maintenance fees depending on the type and length of your patent.  

How Do I Get A Trademark In Wisconsin?

In order to get either a registered trademark (for goods) or a registered service mark (services) in Wisconsin, you can opt to register them with the USPTO. If you simply want to own a trademark, you can start using the trademark in conjunction with offering a service or good in a specific geographic region. If you want to formally trademark, you must register that trademark with the USPTO or the State of Wisconsin. The more unique a trademark is, the easier it will be to protect, so think carefully before you design a trademark to be used for your business.  

You can register your trademark with the State of Wisconsin, but that only applies to your trademark being used within the state. If you want national protection as your business grows, you should register the trademark with the USPTO. To register with the State of Wisconsin costs $15 and lasts for ten years. You can register your trademark on the Wisconsin Department of Financial Institution’s website.  

The national registration of a trademark with the USPTO is a bit more involved, but the trademark will be yours forever. The cost is between $250 and $320, depending on how you plan to use your trademark. You must fill out a file application with the USPTO, who will then assign it to a trademark attorney for review. If the trademark attorney finds an error with your application, you will be notified and given the opportunity to fix it. Once your application is approved, it is approved for publication, and the trademark is not yet registered. The USPTO will publicize the trademark in its Trademark Gazette, and then a 30-day period opens, allowing anyone who believes that they could be harmed (legally) by the registration of that trademark to oppose it.  

If there is no opposition to the trademark being registered, then your trademark will be registered if you intend to use it in commerce. If you intend to use your trademark in commerce in the future, you will receive a notice of allowance where the USPTO will ask you how you intend to use the trademark in the future. When you tell the USPTO how you intend to use the trademark in the future, it is referred to as a Statement of Use. Once the USPTO receives the Statement of Use back from you, your trademark will be registered.  

How Do I Get Copyright In Wisconsin?

If you want to register a copyright, you will do so through the US Copyright Office, a federal government department. Thankfully it is easier than getting a trademark or patent registered. As mentioned earlier in this article, copyright is created when a creator “fixes” the work in tangible form, for instance, by putting words on a page or painting on a painting. In order to enjoy a higher degree of protection, you can elect to register your work with the copyright office. You will need to fill out and file a registration form, pay the fees, and submit a sample or copy of the work you want copyrighted. You would receive a certificate of registration that can be used in litigation if another party tried to claim your work as their own or use it for their profit.  

This has been a very basic primer on a very complex area of law. Ideally, if you want to pursue a patent, you should at least consult with an experienced patent law attorney to assist you with what is a very technical process. The trademark and copyright procedures are much easier to accomplish on your own. Regardless of what type of registration you are seeking, it is always a good idea to protect your intellectual property, and a consultation with an experienced intellectual property attorney in Wisconsin should be your first step. Feel free to contact one of our Racine location attorneys today at (262) 417-1989 or by email at racine.wi@oflaherty-law.com. Find our Racine office at 209 6th St Racine, WI 53403.