The small business world is rife with tales of those who found themselves the victim of copycats, as their product is recreated in exact form and shape. Though it might seem like a hassle, getting the legal nitty-gritty right early on will save a lot of problems down the line. Here we outline the essential things to consider for product protection in the US, with advice and pricing from Devin Miller, CEO of Miller IP Law.

1. Patents

Provisional application: $1,999

Full application: $5,999

Patents protect your inventions. Utility patents protect the functional design of the thing itself and last 20 years; design patents protect ornamental surface designs and last 15 years.

Under US law, once you release your product to the public, you have a grace period of one year in which to apply for a patent. Typically, the processing of a full patent application is about two to three years, but you can also file for a provisional application, which is a third of the price, processed immediately and gives you a year of protection.

‘It may be more beneficial if you have limited funds to file the [provisional] patent application, get that date of invention, and take some time to see whether or not it’s worthwhile backing,’ says Devin. ‘It gives you a year to go out and ask: is this a good invention? Are people gonna pay me for it? Then, if you’re doing well, you do a patent search or convert it to a full patent application.’

2. Trademarks

Trademark application: $850

Trademarks protect things that identify your product: names, slogans, symbols, designs and branding. Unlike patents, trademarks don’t expire, but they are contingent on use – you can’t hoard trademarks you’re not using. Doing a thorough search of the field before filing a trademark application is important.

‘I would always say it’s easier to engage an attorney earlier in the process than later,’ says Devin. ‘If you have a good attorney who’s willing to talk and educate you better, they may say, “Hey, you’re too early in the process, you should be doing XYZ prior to when you get the trademark or anything else.”’

3. Copyrights

DIY application: $35 to $85

Miller IP Law: $350

Copyrights cover art, photography, advertising copy, music and unique jingles. You automatically get some minimal copyright protection for these things, but it’s not very robust. Filing a copyright helps prove when you actually created it. ‘You can register for increased damages meaning that if people were to infringe your copyright and you go after them, you have a lot more options as to what compensation you can get,’ says Devin. Copyright applications only take a few weeks – you can even file yourself.

4. Non-disclosure agreements (NDAs)

Drafting an NDA: $175-$1,500

NDAs can protect you when disclosing confidential information. ‘NDAs are better than nothing,’ says Devin. ‘If you’re going to expose your ideas, if you don’t have a patent, you don’t have a trademark, it is worthwhile. They’re just weaker and harder to enforce than a patent or trademark.’

This article was first published in Courier issue 39, February/March 2021. To purchase the issue or become a subscriber, head to our webshop.

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