Before you can claim protection for your Intellectual property creation, you need to be sure someone else has not created it. Even if you need to know you wont be infringing on someone else right before you begin to use, manufacture or sell a new creation. You do this by searching various databases and publication for similar intellectual property.
Conducting the Search Yourself
Patents, trademarks, and copyright information is matter of public record so you search the appropriate database yourself. Federal database are even available online. That said, conducting patent and trademark searches is not so easy. Similar inventions can be described using many different words, especially patents filed decades ago. You do not need to go back more than 20 years to avoid patent infringement, but its worth doing so to ensure your invention qualifies for a patent. For a trademark you may need to decide if a common law search is appropriate.
A thorough patent search includes all “prior arts”, including issued patents, described in other sources such as journal articles or other literature. You will also need to find not just identical inventions, but also similar ones.
You can begin your search as several places:
- The United States Patent and Trademark Office: Issued patent and published applications are in two databases accessible from USPTO website. You will need to start by identifying classes and subclasses for your invention and then do a search on a variety of keywords to find all relevant documents. The site offers help guides and tutorials to help you search.
- Patent and Trademark Resource Centre’s: These exist in libraries across the country, and their trained staff can offer expert search assistance.
- Google’s Patent Search: Its data comes directly from USPTO and European patent database, and you may search by keywords, inventors name, and other criteria. You can also do a prior art search here.
- Relevant Literature: Journal articles and other authoritative sources within your industry can help you uncover prior art.
You can find federally registered mark and pending application using the USPTO’s Trademark Electronic Search System (TESS). The result also tells you is a mark is still live, and link more to information about it in the Trademark Status and document retrieval system. You may also use a search, such as, Trademarkia, where you can start your search for free and then have the company file your application for a fee. The fee includes a thorough trademark search. The USPTO does not consider common law mark in evaluating your application, but if a mark is similar to yours is already in use in geographical area where you would like to do your business,you may not be able to use your’s there. You can search the internet, state trademark database and relevant industry publications or database for common law uses for your preferred mark.
A Copyright Search is a little different, because you are most likely looking for copyright protection status of a specific work you would like to use a portion of, rather than comparing your work to whats already out there.
If you find similar Intellectual property
If you don’t find any similar IP, you are free to use manufacture or sell your creation and file for protection. If you do find similar creations, you may still be able to use and possibly protect, your under certain condition. These includes:
- Your invention has non-obvious differences from similar invention
- Your trademark is for completely different product or service
- The invention was never patented or its protection has been expired
- The USPTO has declared the trademark dead
- You don’t intend to do business in the area where a similar common law mark is already in use.
If your copyright search shows the work is in public domain, you are free to use it. If the work is protected you will need to ask permission, such as with the copyright request, unless your use falls under fair use such as educational or commentary.
Working with an attorney
As you can see, database searches can be complicated especially patent searches. If you are feeling overwhelmed or unsure that you have conducted a thorough search its good idea to consult an attorney experienced in the area of Intellectual Property Right.