First, let’s talk about the basics: what is a patent and what is a trademark?
Patents and trademarks are both forms of intellectual property rights that give their owners legal advantages in the marketplace. We say “intellectual property” because we are talking about creations of the mind and the effort it takes to turn ideas into reality. Patents are issued for inventions, which can encompass any form of human technology, from chemical compositions to electronics and software. They can also cover processes, designs, and even asexually reproduced plants.
Dr. Charles Drew (left), inventor of the blood bank, and a medical team. He received a patent for his method of preserving blood, which helped save thousands of lives during World War II.
A patent allows its holder to exclude others from making, selling, using, importing, or offering the invention for sale for a limited amount of time (usually 20 years). In return, the inventor discloses the inner workings of the invention so that the world can learn from it and perhaps even improve it.
Examples of trademarks from the museum’s collections: Nike’s “Just Do It” and the swoosh are both trademarked; so is Kentucky Fried Chicken’s Colonel Sanders.
Trademarks are symbols, logos, words, or other distinct identifying marks of a brand, product, or service. Trademarks prevent confusion in the marketplace and help consumers identify their trusted or preferred brands, thus engendering goodwill and customer loyalty.
When did trademarks come to be?
The earliest forms of trademarks predate recorded history. Archaeologists have discovered evidence of some kind of trademarking in nearly every civilization. Identifying the maker of, say, a pottery jar, or the owner of a livestock animal, was important to commerce even in ancient times. In the United States, trademarks did not become a federally governed intellectual property right until 1870, though every state had, since colonial times, some form of law or common law to protect genuine brands from imposters. The oldest still-in-use U.S. trademark, registration no. 11210, dates to 1884.
Is there anything that’s commonly misunderstood about the patent process?
Perhaps one common misconception is that you can patent an idea. While ideas can be incredibly powerful and unique, they are not necessarily “inventions” until they reach a certain level of development, which often requires creating prototypes and testing. A patent application must describe an invention in such detail that it could be made and used by someone who has normal skill in the technological area of the invention. We call that “reduction to practice” at the USPTO, and it means you’ve got an invention and not just an idea!
Thomas Edison’s 1873 model of an improved stock ticker for the Gold & Stock Telegraph Company. Patent models, which were included in the application process at Thomas Jefferson’s insistence, are no longer required.
What makes an invention successful? Just because you get a patent doesn’t mean your creation is successful, right?
Success is tricky to define. An invention can be effective at solving the problem it was intended to fix, but it might never be commercially successful. At the same time, there are plenty of inventions that sell well but don’t succeed at solving problems. But evaluating this is not the USPTO’s role. Patent examiners ensure that an invention meets the requirements for a patent under the law. At the most basic level, this means the invention must not have existed before and must not be an obvious improvement to something that already exists.
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