Patent and Trademark Law for Librarians
It isn’t only specialists who need to know
Q: What do Tarzan’s yell, Darth Vader’s breathing, the Pillsbury Doughboy’s giggle, AFLAC’s duck quack, the 60 Minutes ticking stopwatch, and Homer Simpson’s “D’oh!” have in common?
A: All are protected by US trademark law. (You can hear more examples at the US Patent and Trademark Office website.)
In 2016, Nintendo joined the fraternity by trademarking the Mario coin chime more than thirty years after the original Super Mario Bros. game was released. (Nintendo had better luck than Harley-Davidson, which failed between 1994 and 2000 to trademark the rumble of its idling V-twin engine. I guess if you’ve heard one motorcycle, you’ve heard ’em all.)
Similar to trademarks are patents, which protect scientific inventions. Some patents, like those issued for solar panels, GPS, and the iPhone, have changed the world. Others, like Spitzmesser Gordon’s gas-powered pogo stick, are definite head-scratchers.
Patents, along with copyright for written works, come straight out of the United States Constitution: “The Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” A patent offers those rights for up to twenty years, during which time the inventor may exclude all others from making, using, importing, or selling their invention. The first patent ever issued went to Samuel Hopkins on July 31, 1790, for a process of making potash, an ingredient used in fertilizer. Since then, over twelve million more have followed.
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Trademarks are much older. In 5000 BCE, Indian craftsmen used specific marks to identify their pottery and tools. Roman blacksmiths marked their swords, and Egyptian brickmakers stamped their bricks. The first US trademark law was passed in 1870, but the Supreme Court struck it down in 1879. Finally, in 1946, came the Lanham Act, which governs trademark law today.
Both patents and trademarks are regulated by the US Patent & Trademark Office, which was created in 1836. Its mission involves
fostering innovation, competitiveness and job growth in the United States by conducting high quality and timely patent and trademark examination and review proceedings in order to produce reliable and predictable intellectual property rights; guiding intellectual property policy, and improving intellectual property rights protection; and delivering intellectual property information and education worldwide.
The process for applying for patents and trademarks is roughly the same:
- Get ready to apply.
- File your application.
- “Prosecute” your application (i.e., answer questions and provide more information to USPTO).
- Receive your trademark or patent.
- Protect your trademark or patent.
Part of the application process is to make sure your mark or invention does not mimic or infringe on an existing one. This involves an extensive search of the USPTO’s existing patent or trademark databases. Plus, there are many terms of art to learn, such as a utility patent vs. a design patent. There is even a type of patent for someone “who has invented or discovered and asexually reproduced a distinct and new variety of plant.”
How can a person get help with the patent or trademark process? One way, of course, is to hire a lawyer, but that can be expensive. The USPTO has some patent and trademark tutorials, and they seem very detailed. But what if you need more help?
A great place to turn is a Patent and Trademark Resource Center (PTRC).
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PTRCs have been around since 1871, when Congress authorized the USPTO to print and distribute copies of patents to certain federal depository libraries. Publishing patents is important because it allows others to study the invention and improve upon it. Like law libraries, PTRCs are staffed by specialists who can provide searching and technical assistance. They cannot, of course, offer legal advice.
There are benefits to a library becoming a PTRC. Here is how the University of New Mexico describes them:
An active PTRC brings the newest technology in the form of patents to a myriad of potential users in a city, state or entire region. Patents also provide a unique body of scientific and technical literature that adds value and stature to a library’s resources. Access to trademark information provides a service in high demand by local businesses. The availability of high quality patent and trademark information services often attracts new communities of library users with the potential for new sources of library support.
There are currently eighty-one PTRCs. Most are academic libraries, though some are large public libraries. According to the USPTO, there are three duties a PTRC must fulfill:
- Provide free assistance to the public in the efficient use of patent and trademark information resources provided by the United States Patent and Trademark Office (USPTO).
- Provide quarterly metrics on the use of patent and trademark services and outreach efforts conducted by the member library as stipulated by the USPTO.
- Send one person from each PTRC library to attend the USPTO-hosted PTRC training seminars, generally held on an annual basis.
Though any library can apply to become a PTRC, those with the greatest chance of success have the following characteristics:
- Demonstrable expertise in intellectual property
- Demonstrable leadership in professional library associations
- Major research institutions
- Within commuting distance of major metropolitan areas
- Within or near economically distressed areas
- Offering programming in Spanish, Mandarin, and/or other non-English languages
Another resource is the Patent and Trademark Resource Center Association, which links to international databases, tutorials, and publications. It also maintains a blog, The Patent Dispatch, which views current events through the eye of IP protection (e.g., Labubu v. Lafufu).
Patent and trademark law is a specialized yet fascinating subject that all librarians should learn more about. Use the resources in this article to get started!
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