Tag Archives: patents

Is my idea patent-ready?

1 February 2023

You have a sufficiently detailed idea

There is often a misconception that an idea needs to be developed into a working prototype prior to filing a patent application. However, this is not the case. To be patent ready, an idea only needs to be developed to such an extent that sufficient details of the idea are available allowing it to be described sufficiently so that a person skilled in the art can practice your invention. For example, if you only still need to decide on the exact material that you want to use for a certain part of the invention, and the material does not play a significant role in the functioning of the invention, then a patent application could probably already have been filed for your invention.

You have made sure to keep your idea a secret

In order to file a patent application for your invention, the invention needs to be new (novel). This means that in order to be patent ready, your idea should never have been disclosed by anyone else before, anywhere in the world. A disclosure is regarded as a novelty destroying act for an invention and prevents an idea from ever being patented successfully. Hence, the price to pay for a disclosure prior to filing a patent application is very high.

So, what is considered a disclosure? An invention is disclosed as soon as it is made available/known to the public. It does not necessarily need to be a disclosure made to a large group of people. A disclosure made to another individual, particularly in the absence of a signed non-disclosure agreement, is also regarded as a novelty destroying disclosure. A disclosure may furthermore entail a publication, sale, negotiations, or demonstrations, and also a social media post on your own social media channels.

For more information on such novelty destroying acts, keep an eye out for our next blog. Should you need to disclose your invention, it is of vital importance to first consult with a patent attorney prior to making such disclosure.

You are ready to sell or license your idea

Essentially when you sell (or license) your idea, you don’t merely sell the idea but rather sell enforceable rights in respect of that idea. When there is no patent application filed for the idea, there is no possibility for obtaining enforceable rights for the idea. Consequently, there is nothing hindering a third party from using the idea as such party would not suffer any consequences for such use. It is thus unlikely that a third party would purchase or obtain a license for the idea from you whilst such party can instead just use it for free. Thus, prior to offering your invention for sale or entering licensing negotiations you need to ensure that you have at least applied for a patent application for the invention.

In brief

Rather be safe than sorry. If at least one of the above-mentioned guidelines apply to your invention, or you are still unsure if your invention is patent-ready, it is time for you to discuss your invention with a patent attorney.

You can always schedule a first free of charge consultation with one of our patent attorneys to discuss the patentability and patent readiness of your idea. Contact us here for an appointment.

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Marking patent protection on a product: how do you do that?

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3 January 2022

Purpose of marking

Why is marking important? You own a patent or applied for a patent and of course you want others to respect it. Marking a patented product has a preventive effect. Although the relevant patent or patent application will usually be published in a patent register, not everyone reads everything. By indicating on or with the product that the product has been placed under patent protection, or that a patent application has been filed for it, all doubt is removed in that respect and potential infringers are thereby warned.

As an owner of a patent, you can demand that the infringer ceases from its infringing activities. In general, patent law will also provide for a possibility to claim damages. This is often subject to the requirement that the infringer knew that he was committing an infringement. Particularly in Anglo-Saxon countries such as the US and the UK, it is sufficient for this to be indicated on or with the product for which the patent protection applies. Then, the person cannot argue that he or she was not aware that the patent was infringed.

Avoid false or misleading marking!

Make sure that the marking you want to use is not misleading. Stating that patent protection applies when in reality this is not the case in the country concerned, can be regarded as unlawful. In Germany in particular, an incorrect, ambiguous or incomplete description quickly leads to liability and an obligation to pay damages. This applies in particular to the general wording ‘patent pending’ which should not be used in Germany. It is therefore important to state the applicable patent or patent application correctly and as completely as possible and not to create any confusions. In addition, it is important to remove the marking immediately as soon as the underlying patent lapses or the patent application is rejected or not pursued.

Different ways to label a product

In the first place, the applicable patent protection can be indicated directly on the product. However, it is also possible to display the marking on the packaging of the product. Alternatively, reference can be made to a website where the relevant patent details can be found. The latter is called “virtual marking” and has the advantage that the product or packaging does not have to be adjusted every time a patent is granted or expires. The website in question must then be free and publicly accessible.

Examples of common markings are:

Netherlands	Patent pending no. [number] NL
	Patent NL [number]
	European Patent EP [number]
USA	Patent Pending US Ser.No. [number]
	Patented US [number]
Virtual	Patented or Patent pending, see website.com for patent details

In brief

Without a doubt, marking on or with the product will have a preventive effect and, moreover, in a number of Anglo-Saxon countries in particular, this is sufficient to qualify for compensation if the patent is nevertheless infringed. However, for the remaining enforceability of your patent it is not necessary to affix a marking, yet in the event of an incorrect or misleading marking you are under certain circumstances liable for the damage caused to a third party. Hence, if you want to use marking, make sure to check the relevant country’s legislation on patent marking and avoid misleading marking. If you want to state that your product is under protection or that you have applied for a patent, do it correctly in each country and avoid misleading.

Would you like to know what you can do best in your specific situation? Please feel free to contact us. We are happy to advise you.

When can I use a trademark symbol like ® or ™ next to my trademark?

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17 June 2021

Trademark symbols like ® are widely used by companies next to their logo in order to prevent other companies from copying such a mark. However, are these symbols mandatory to use, or are they just optional? And when can companies use these symbols next to their trademark?

The symbols

We like to give you more information in how these symbols are and ought to be used within the European Union (United Kingdom included) as well as the United States.

A brief overview of the symbols is given here below:

™ wordt gebruikt voor een merk dat nog niet is geregistreerd.
® will be used for a trademark that has been registered.
℠ will be used for a service mark that has not yet been registered (United States).
© will be used to notify that a certain non-audio work is protected by copyright.
℗ will be used to notify that a certain audio work is protected by copyright.

™-symbol

The ‘TM’ stands for ‘trademarks’ and this symbol is popular within the United States and Australia, but it does not hold much weight in most countries within the EU. It is mostly used on marks that are not yet been registered as such. Furthermore, this symbol does not poses any legal status within the United States nor the European Union. However, some German courts have determined that this symbol must be used in association with a registered trademark.

®-symbol

This symbol means that the trademark has been registered, as the R in the ® stands for ‘registered’. So the claims that are attached to the ®-symbol are much stronger than the claims that are attached to the ™-symbol. However, it is not mandatory to use the symbol within the European Union, as it does not contain any official legal status. This symbol may only be used when the mark is registered. Throughout most of Europe, the use of the ®-symbol with marks that have not been registered, run the risk of violating the rules on misleading advertisements. So companies need to be assure that their trademark is registered before they decide to use it in their businesses. In contrast to the European Union, trademark owners are required to use the ®-symbol if they want to claim profits or damages in an infringement case within the United States, as the symbol does have an official legal status there.

℠-symbol

This symbol is used for an unregistered service mark, that is used to promote or brand services instead of goods. This mark is generally used within the United States, and rarely seen within the European Union. The ℠-symbol does not contain any legal status within the European Union nor in the United States. If the service mark has been registered, then the ®-symbol is used instead.

©-symbol

This symbol is not associated with trademarks, but with copyright. It means that a certain work is protected by copyright, and may not be copied or used without restrictions. However, trademarks can be protected by copyright as well as intellectual property rights can overlap each other in certain cases. This symbol is not mandatory within the European Union since it is not codified in any EU-law. However, this symbol can be optionally be used in Europe in order to notify third parties of the fact that a certain work is protected by copyright. This symbol can be used to indicate that the author obtains copyright on the particular work within the European Union. However, the ©-symbol was first described by the old Universal Copyright Convention, which indicated that the author has filed a copyright notice for countries that had not acceded to the Berne Convention, like the United States until 1989. Even though this copyright notice is not required in the United States, it still carries evidentiary weight as copyright infringers cannot claim innocent infringement as defence in order to mitigate its damages for works that carry the ©-symbol.

℗-symbol

This symbol is also associated with copyright instead of trademarks. The difference with the ©-symbol is the fact that the ℗-symbol is used for audio works, as the ‘P’ in ℗ stands for ‘phonogram’. These sound recordings have a distinct copyright from that of the underlying work. It was introduced by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. Historically, this symbol was used in order to indicate compliance with the legal formalities in order for phonogram producers or performers to gain copyright protection on their phonograms. Such formalities do not exist within the European Union, as producers of phonograms gain copyright on phonograms from the moment they are produced. That means that the use of this symbol is not mandatory within the European Union. This symbol is not mandatory in the United States in order to gain copyright protection on phonograms. However, it does carry evidentiary weight as copyright infringers cannot claim innocent infringement as defence in order to mitigate its damages for works that carry the ℗-symbol. So it can be recommended to use this symbol on phonographic works in combination with the other legal requirements.

Summarizing

Main points to consider:

“TM” stands for “trademarks”.
The ®-symbol has an official legal status in the United States.
The ℠-symbol is used for an unregistered service mark.
Het ©-symbool wordt gebruikt voor het auteursrecht.
The ℗-symbol is used for copyrights, specific for audioworks.

Use the symbols properly. If you doubt about which symbol best matches your trademark or registration, please contact one of our advisors.

Did you know that patents, trademarks and designs go hand in hand?

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27 May 2021

Even if you have done everything to protect a product, you may miss an intellectual property right. Many conventional offices specialize in trademark and design registration only or in patent registration only. Unfortunately, there is a good chance that you are not fully protected if you only have a registered trademark and / or design or only a patent.

Conventional trademark or patent offices

However, conventional trademark or patent offices (Figure 1) will state that they can refer you to an outside trademark or patent expert if they discover that a particular product cannot be protected by a registered trademark, design or patent. It is then essential that the specialist in the field of trademarks and designs or patents first discovers something that is patent-worthy. That will be a difficult job for the brand and model specialist or patent specialist. Many of them do not specialize in patent law as well as trademark and design law.

Work against instead of supplement

Some Intellectual Property Rights, if not applied for in the correct order, can work against each other rather than complement each other. If a technical invention is patentable, it is important to apply for this patent in advance of all other activities. Also, a patent or design may not be sold before a registration has been filed. This is because no patent right or design right can then be granted.

A trademark attorney will first have to discover something patent-worthy before a client can be referred to a patent attorney. However, a trademark attorney is not specialized in patent law, which means that there is a chance that it is possible to apply for a patent on your product while it went unnoticed by the trademark attorney. The same situation, vice versa, is also possible.

At a full-service agency, patents, trademarks and designs go hand in hand

Fortunately, with a full service agency Patents & Trademarks (fig. 2) patents, trademarks and designs go hand in hand with each other! Your product will always be viewed by both patent and trademark and design experts. This means you are always assured that your product is fully reviewed by all intellectual property specialists. And you can do business with peace of mind while the attorneys take care of adequate protection of your product.

Summarizing

Main points to consider:

At a full-service agency, patents, trademarks and designs go hand in hand.
The correct order for the application for intellectual property rights is important.
LIOC Patents & Trademarks is a full service agency and your product is always viewed by experts in the field of patents and trademarks and designs.
See also our blog “when can I publish my invention“.

Discover how we protect your product and which form of protection best suits your product. Contact one of our advisers and let us advise you.

Warning about misleading invoices

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5 May 2021

Nog altijd worden octrooi- en merkhouders lastig gevallen met spookfacturen. De facturen lijken echt en komen erg overeen met die van de officiële instanties. Zoals bijvoorbeeld het WIPO (World Intellectual Property Organization), het Benelux Bureau voor de Intellectuele Eigendom of de Kamer van Koophandel. Graag waarschuwen wij u voor deze misleidende facturen.

How do the companies get your data?

Zowel het handelsregister bij de Kamer van Koophandel als de octrooi- en merkenregisters zijn openbaar. Uit deze registers halen de aanbieders van misleidende facturen eenvoudig uw gegevens om u zo een misleidende factuur toe te sturen. Een aantal bedrijven hebben hier hun dagelijks werk van gemaakt. Zij versturen op regelmatige basis facturen, die noodzakelijk lijken voor de registratie of verlening van uw recht, maar in feite spookfacturen zijn.

Criminally convicted

In de loop der jaren zijn er in enkele gevallen malafide bedrijven door de mand gevallen en is een verdachte strafrechtelijk veroordeeld tot een gevangenisstraf van 18 maanden voor oplichting en schending auteursrecht van de Kamer van Koophandel. Deze verdachte had samen met anderen 385.000 brieven met acceptgirokaarten naar ondernemers verstuurd met mededeling “Bijdrage kvkhandelsregister.nl”. Deze brieven vertoonden frappante gelijkenis met de jaarlijks door de Kamer van Koophandel verstuurde nota’s (ECLI:NL:GHARL:2017:2702). Ook in Zweden en België hebben soortgelijk veroordelingen plaatsgevonden.

Check your bill!

Zorg ervoor dat u altijd uw factuur controleert voordat u deze voldoet. Dergelijke misleidende facturen gaan niet altijd over uw inschrijving bij de Kamer van Koophandel. Het kan ook over uw merk of octrooi indiening gaan, of bijvoorbeeld of de verlenging van uw geregistreerde merk of octrooi. Enkele van onze klanten ontvangen ook regelmatig aanbiedingen per e-mail over het registreren van hun domeinnamen in het buitenland. Met een waarschuwing dat als u niet registreert, iemand anders uw domeinnaam of zelfs uw merk zal registreren in dat land.

Het is daarom van belang kritisch te zijn in het controleren van uw facturen. Kijk hierbij goed waar de brief vandaan komt, wat is het adres van de afzender. Vaak kunt u hieruit afleiden dat de brief in werkelijkheid niet afkomstig is van de officiële instantie in kwestie. Voorbeelden van misleidende facturen treft u hier aan.

In alle gevallen van twijfel adviseren wij om contact op te nemen met een van onze gemachtigden.

Summarizing

Main points to consider:

The invoices look real and are very similar to those of the official authorities
Controleer de afzender
Bij twijfel, neem contact op

Twijfelt u aan de echtheid van een factuur? Neem contact op met een van onze gemachtigden. Wij helpen u hier graag bij.

Photo by Luis del Río via Pexels.

World IP Day 26 April 2021– Taking your ideas to market

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25 April 2021

Every year on the 26th of April there is the “World Intellectual Property Day”. Every year The World Intellectual Property Organization (WIPO) takes the lead here. In doing so, they stimulate innovation and creativity and provide more information about the role that intellectual property rights (IP rights) play in the market.

Turning an idea into a business opportunity

With IP rights, such as with a patent, trademark or design, you can turn an idea into a business opportunity and generate value for you. IP rights allow your business to grow. World-IP-Day 2021 highlights the central role WIPO and regional registries around the world play in creating favorable conditions for entrepreneurs to allow innovation and creativity to grow.

World Intellectual Property Day 2021 celebrates the ingenuity and creativity behind every endeavor, their courage to make a difference, and their contribution to improving our lives.

Summarizing

Main points to consider:

With IP rights, such as with a patent, trademark or design, you can turn an idea into a business opportunity
IP rights can add to the growth of your business

Contact us for a no-obligation advice on the possibilities of IP protecting of your idea.

Source: WIPO

Did you know… Companies with an IP portfolio perform better

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22 April 2021

A recent study by the European Trademark Office and the European Patent Office confirms that companies with an IP portfolio perform much better than companies without? Most notably, SMEs with established brands, models and / or patents even achieve a higher turnover of 68%! This while it has turned out that less than 9% of SMEs have registered any IP right. So there is still great potential here.

The survey examined 127,000 companies, in all 28 EU Member States. We looked at 3 different IP rights, namely patents, designs and trade marks. The study isolated the effect of IP rights ownership from factors such as company size, country and sector. The most important indicators for measuring company performance are turnover per employee and the salary of the employees. One of the most important findings from the study is that companies with IP rights have a 55% higher turnover per employee than companies without IP rights. It is striking that SMEs even generate 68% higher turnover per employee.

Do you have questions about establishing a patent, trademarks or designs? You may be wondering if protection is possible in your case? Contact us for free and non-binding advice.

When can I go public with my invention?

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19 March 2021

It is often known that an invention must be new to qualify for patent protection. But what exactly does this mean? And what can or can’t I do without harming the novelty?

Novelty requirement in short

An important requirement for granting a patent is that the invention must be new. An invention is new when it is not part of the “state of the art”. An invention has become part of the “state of the art” if it has become public in any way. This can be oral or written, but also because the invention is already in use before the patent has been applied for. It is therefore important that the invention remains secret until such time as a patent application is filed for it and you have obtained an official filing date. This is the only way to prevent your patent application from being rejected, or from being a target in a court invalidity procedure, because you have disclosed the invention yourself.

Publication

I can hear you think: have I made my idea public yet? Can I already talk to an investor? Can I already post something on Facebook or my website?

A patent office checks whether the invention is “new” by means of a search in written publications, especially online and in patent publications. When the invention is made public by means of a Facebook post, this will therefore not be discovered quickly, but it is indeed harmful to novelty. After all, Facebook is a public platform, but even if a patent council has not encountered the publication, this does not mean that the patent is then valid. In an opposition or invalidity action, for example, the patent can still be declared invalid.

When you want to enter into a conversation with a third party, this does not usually count as disclosure, but there is a risk that the other party will make the invention known without you knowing and intended.

Confidentiality Statement

For this reason, it is always wise to have a nondisclosure agreement signed when you want to discuss the invention with, for example, investors, producers, advertisers, etc. In English it is referred to as a so-called NDA. This stands for Non-Disclosure Agreement. We can draw up, develop and advise you on such a statement.

Summerizing

Main points to consider:

Before a patent application is filed:
- always have someone else sign a nondisclosure agreement if you want to discuss the invention with them.
As soon as you have received confirmation of submission from us, you have registered the invention. Now you can feel more confident about promoting it.

If in doubt or if you have any questions about the foregoing, please contact us for advice.