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Intellectual PropertyAfter months (or, perhaps, years) of diligent legal work, your business has finally secured its intellectual property rights through a patent, a trademark registration, a copyright registration or some combination thereof. Finally, you breathe a sigh of relief, put your legal paperwork in a file cabinet and get back to running your business. Years later, you find that a competitor is infringing your rights. After blowing the dust off your paperwork you discover, to your dismay, that your intellectual property rights were not properly maintained and have expired. What happened and what do you do now?

Unfortunately, many clients fail to realize that most intellectual property rights carry maintenance obligations until it is too late. That being said, these are pitfalls which can be easily avoided, and clients often have tools they can use to “backfill” rights if a deadline is inadvertently missed.

Patent Maintenance

patent lawU.S. Patents are subject to periodic maintenance fee payments. The motivation behind this is the anti-competitive effect patents have on the market. Congress decided that there should be some affirmative, monetary obligation of patent owners to maintain patent rights as a means of culling unused patents which might otherwise be preventing competition. Such patent maintenance fees are due at the 3½, 7½ and 11½ year marks. These fees follow the following schedule:

  • 3½ year maintenance fees can be paid between 3 and 3½ years after the patent issuance date;
  • 7½ year maintenance fees can be paid between 7 and 7½ years after the patent issuance date; and
  • 11½ year maintenance fees can be paid between 11 and 11½ years after the patent issuance date.

Additionally, each of these fees can be paid within a six-month grace period (for an additional fee).

If these fees are not timely paid, then the underlying patent lapses and is no longer enforceable. This can be an enormous problem. Many clients either forget or are not told about patent maintenance obligations. The result can be a loss of rights and the inability to stop knock-off products. There are certain procedures to try to reinstate a patent which was unintentionally abandoned in this way, but the costs can be high and the probability of success can vary. This can also open the door to intervening rights by certain competitors. The best thing to do is to carefully calendar maintenance fee deadlines ahead of time and engage counsel to help you.

Trademark Maintenance

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Continue Reading IP Maintenance 101: Keeping Your Intellectual Property Rights Alive

Launching your own business is a huge decision, one not to take lightly. From developing your product or service and getting funding to taking measures to protect your business, entrepreneurs must do their homework. As a business and tax attorney, one question I often hear is:

What is the best way to set up a new business?”

While the answer varies depending on the goals of each client, an LLC is often chosen.

What is an LLC?

An LLC, or limited liability company, is a U.S. business structure that combines the simplicity, flexibility, and tax advantages of a partnership with the personal liability protection of a corporation. The owners of LLCs are called members. An LLC can have one or many members. Members can be individuals or other businesses, and there is no limit to the number of members an LLC can have. With an LLC structure, members’ personal assets are protected from the LLC’s creditors. LLCs are more cost effective and simpler to form than a corporation. This, in addition to the discussion below, has led to LLCs becoming the ‘go-to’ business structure to form.

Who should form an LLC?

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Continue Reading What is an LLC and why do I need one?