The U.S. Patent System in Your Own Backyard

Think you have the next great idea?  Have you improved an existing technology by making it easier or more efficient?  If so, then you may be entitled to protect your idea by obtaining a patent.  The first ever USPTO satellite office in Detroit is open and operating, and PSED Law would like to help you bring your invention to it.  The high number of engineers and research professionals in the area played a part in the decision to bring the USPTO to Detroit and it is certainly a welcomed addition to Southeastern Michigan.

In the U.S., a patent is a way to prevent others from using, making, selling, offering to sell or importing your invention in the U.S for a limited time.  You are granted this right for 20 years from the date you file your application.

To begin the process of obtaining a patent, you must file an application with the United States Patent and Trademark Office (USPTO).  These applications are very technical and must meet several requirements.  Among other things, the application includes a specification, which details in very clear, concise and exact terms how to make or use the invention so that someone else will be able to make or use your idea after reading it.  An application must also include drawings to further define and illustrate the invention.  Lastly, an application must include at least one claim.  A claim is what features or elements the inventor regards as entitled to protection.

Once your application is complete, it is filed with the USPTO where it will be examined by someone with a background that matches the field of your invention.  The examiner will perform a comprehensive, world-wide search to determine if your invention is new, useful and is not obvious in light of previous inventions.  After the examiner has completed the search, the applicant has an opportunity to respond to any rejections or reasons for not allowing the claims.  If the examiner and the applicant agree that some or all of the claims are allowed, then the USPTO will grant you a patent protecting those claims.

The entire patent process, from filing an application to receiving an issued patent, varies in time according to several factors.  The time a particular application will be pending at the USPTO depends on the complexity of the subject matter of the invention, the backlog and number of examiners at the USPTO, etc.  Applicants will usually receive the first Office Action within 12-15 months and most patents will be granted between 2-6 years from the filing date.

Patent protection is a very valuable asset and provides the inventor with an enforceable right for a relatively long period of time.  The process is very technical and failing to take the proper precautions can result in a potentially lucrative idea being deprived of some, if not all, of its protection.  Consulting with a registered patent attorney before starting the application process is recommended to give you the best chance of receiving a quality patent.  PSED Law’s own Todd Chawansky is a registered patent attorney who can assist you with your patent application.

For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

Selecting and Registering a Trademark

Any business, whether emerging or established and looking to expand, should consider one or more trademarks to help consumers identify the source of certain goods or services.   Regardless of any formal registration, trademark rights are created through their use in commerce.  Therefore, it is possible for different entities to obtain trademark rights in the same trademark for different goods or services or in different geographic locations.  Although state or federal registration is not required to obtain an interest in a trademark, it does provide some additional benefits.

In selecting a trademark, the strength or distinctiveness of the mark is critical to the mark’s overall level of protection.  Generally, the more distinctive the mark, the easier it is to register and prevent the use of that same or similar mark by another.  The strength of a trademark depends on the level of distinctiveness.  Fanciful marks are often considered the strongest, followed by arbitrary marks, then suggestive marks and finally descriptive marks.  Merely descriptive marks are typically not entitled to registration on their own, but may acquire distinctiveness over time.  Generic terms are not entitled to any trademark protection.

As noted above, a trademark is created through its use in commerce and registration is not necessary to have rights in a trademark.  Using an unregistered trademark gives the user common law trademark rights in the geographical area in which the mark is used, and slightly beyond in some cases.  If the mark is being used in interstate commerce, federal registration may be possible.  If the mark is only used within one state, state registration may be available.

Whether a mark is available for use and whether it can be registered are different inquires that need to be made.  Before an entity chooses a trademark and begins using it in commerce, it is always recommended to obtain a clearance opinion regarding the proposed mark.  A detailed search report will limit legal liability, as well as prevent wasting time, development and money on a mark that may already be in use by another, thus possibly requiring the entity to change its mark after years of consumer association and goodwill.

Trademarks are arguably the most important asset a business can have.  A strong, distinctive trademark is essential when trying to grow a customer base and become recognized as the source of a particular good or service.  As long as they continue to be used in commerce, trademarks can last in perpetuity.  Making an initial investment in selecting and securing your trademark will go a long way in successfully growing and maintaining your business.

For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

Nudes, Dudes, and Zoning Disputes

Anyone who has participated in a local zoning controversy—whether as a property owner desiring to alter the use of a parcel, a nearby property owner displeased with the proposed change, or a governmental agency (council, planning commission, zoning board of appeals) required to resolve the issue—knows full well that these matters can arouse strong emotions.   Indeed, a whole vocabulary of clever acronyms has emerged to characterize attitudes frequently encountered in these situations, such as NIMBY (not in my backyard), NIMTOO (not in my term of office), BANANA (build absolutely nothing anywhere near anyone), DUDE (developer under delusions of entitlement), and NUDE (neighborhood under delusions of entitlement).   Litigation may result from these disputes, and the threat of litigation is often made whether or not a party intends to follow through.  However, an important point to keep in mind is this:  unless a municipality clearly violates the Constitution or a statute in making a land use decision, or clearly abuses its discretion, a court is likely to uphold the municipal decision.   Hence, parties involved in these matters would be well advised to focus on how best to present and explain their positions, rather than on how a court might eventually bail them out.

A number of things are worth the attention of both the property owner wishing to make a change and nearby property owners opposed to the change:

• Remember that those on the other side feel as strongly as you do, and may have legitimate constitutional, legal, and economic interests at stake.   Consider communicating with those people in advance of seeking relief from the municipality (you may even be required by ordinance to do so), and consider making concessions which do not seriously undermine your position but which may enable the matter to be resolved with minimum unnecessary expenditure of time, money, and stress.

• Carefully review the statutes, ordinances, municipal plans, and other development standards which will provide the framework for the municipal decision, and consider discussing the matter with the municipality’s professional planning staff to determine whether there are interpretations relevant to those governing documents, or proposed changes to those documents under consideration, which might impact the municipality’s decision.

• Prepare thoroughly for any presentation to a decision-making body, considering such questions as:  Who should speak?  What documents or other exhibits should be provided?  Would any expert testimony be helpful?  Can community interests be addressed so that the presentation will not be viewed as merely an expression of narrow economic concerns?  How can the presentation be orchestrated so as to avoid undue repetition or personal attack?

From the standpoint of the municipal decision-making bodies, attention must be paid to a number of other matters:

• All relevant procedures, must be followed, such as providing all notices required by statute and ordinance, and conducting all public hearings which may be required.

• Adequate rationale should be provided for all decisions, with an indication of how all relevant standards have been considered.

Compliance with these suggestions will of course not guarantee complete satisfaction by all parties with the decision reached, but may at least help assure that all important concerns have been fairly and adequately addressed.

Pear Sperling attorneys have considerable experience in dealing with municipal government matters, both with regard to zoning and land use and many other topics, and have represented both municipal agencies and private parties in resolving such matters.   For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us athttp://www.psedlaw.com.