Author Archives: Pat Werschulz

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About Pat Werschulz

Pat Werschulz is an intellectual property lawyer and a registered patent attorney at Werschulz Patent Law, LLC in Cranford, New Jersey.

EMAIL: pat@wplllc.com

BIO: About Pat

908.313.2347

Intent to Use—Reserving Your Trademark Rights
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Intent to Use—Reserving Your Trademark Rights | Pat Werschulz

One of the questions I am most frequently asked by clients thinking about starting their own companies and businesses: When can I apply for my trademark? In the U.S. Federal trademark system, you can file two different types of applications. One is the Actual Use Application, also known as the 1(a) application, which is where you have already been using your trademark and you have had a bona fide business transaction. This means you just have to fill out the application and go through the process, which takes about eight months. Part of the application process is to submit the specimen that has actually been used. In most of the state systems that have trademark registries, this is the only time that you can apply for a trademark registration, when you are actually using it to conduct business.

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Small Business 101: Deciding Your Trademark
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 Small Business 101: Deciding Your Trademark | Pat Werschulz

One of the most critical decisions you must make in the early stages of your business is picking a trademark that will be effective and work well to promote your brand. How do you decide what your trademark is going to be? The first step is to pick your brand name. You may have a logo, you may have a tagline, but you need to decide on the name of your product or service. You should consider that your trademark is distinctive, both from a legal point of view, and from a marketing point of view. You do not want your product or service to be confused with any others.

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How Can I Protect My Trademark?
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How Can I Protect My Trademark? | Pat Werschulz

People always ask me how they can protect their trademark. You protect your trademark by using your trademark. Now, assuming you’re entitled to use your trademark or brand name, because nobody else is using it for your type of goods or services, the way you develop rights and ownership is by using your trademark by selling goods or providing services. There are three levels of protection that, once you start to use your trademark, you develop your rights in.

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Want a Trademark? Make Sure It Doesn’t Already Exist
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Want a Trademark? Make Sure It Doesn’t Already Exist | Pat Werschulz

{Read in 4:40 minutes} So often I am asked, “How do I get a trademark?” There’s a very simple answer. First, you pick what you want as your trademark, and second, use it. Wait a minute. That sounds way too simple. Well, getting rights in a trademark is actually pretty simple. The tough part is actually picking what your trademark is going to be. Whether it’s a name, or what we call a word mark, or design, picking that is very critical. You need to be sure that you can actually use it and that you will not be using somebody else’s trademark.

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Trademarks 101: It’s All About the Brand
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Trademarks 101: It’s All About the Brand | Pat Werschulz

Trademarks are so much a part of our culture that we really don’t think about them too much. They’re ubiquitous. If I say a trademark is a brand, everybody knows immediately what I’m talking about, because it’s all about the brand, what the brand stands for, and the message that each brand is trying to convey to the consumer. Technically, a trademark identifies the source of goods or services to the consumer. A trademark can be some words. It could be some sounds. It can be:

  • Words;
  • Sounds;

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Need Help with a Trademark? Consult a Law Student!
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Need Help with a Trademark? Consult a Law Student! | Pat Werschulz

In the past, we’ve talked about the patent pro Bono program. This program offers assistance to individuals who have inventions that may be patentable, but can’t afford an attorney. It’s sponsored by the United States Patent and Trademark Office (USPTO) and administered locally. Generally, you must have a low income.  You can learn more about that program on the USPTO’s website here. There are several other programs that the USPTO is involved in that are available to those looking for help with intellectual property, but I want to talk about something a little different. You may not be able to afford an attorney, but qualify for pro bono assistance. And that’s where the USPTO’s Law School Clinical Certification Program comes in.

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Pass Go & Collect: How to Patent Board Games
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Pass Go & Collect: How to Patent Board Games | Pat Werschulz

The Story of Monopoly… A patent is a limited monopoly that the government grants for an invention. The government granted inventor Charles Darrow a patent US2026082A on the board game Monopoly in 1935. There’s some controversy about the 1935 patent: Darrow learned about another game called “The Landlords’ Game” that was patented in 1904 by a woman named Elizabeth Phillips. That game was created as an educational tool about monopolies in the landlord/tenant context. Darrow first played The Landlord’s Game in 1933; he changed the game enough to earn a patent on his version, Monopoly, two years later. Monopoly was one of many board games that became popular in the post-Depression 1930s, when people couldn’t afford to go out much.

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Foreign Filing License & Your Filing Receipt
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Foreign Filing License & Your Filing Receipt | Pat Werschulz

Most people who are filing for a patent in the United States don’t even realize that, at the same time, they’re applying for a foreign filing license. What’s that? Well, it turns out that if some or all of the inventive process takes place in the United States, before you can apply for a patent outside of the United States, you must be granted a foreign filing license.

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Brexit’s Effect on European Patents
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Brexit’s Effect on European Patents | Pat Werschulz

It’s official: the United Kingdom is leaving the European Union. While Brexit will have no effect on your U.S. patent (which protects your rights in the United States), as an inventor, you may be curious about how Brexit affects foreign patents, since many U.S. inventors have extended their patents by filing through the European Patent Office (EPO). When you file a patent application with the European Patent Office, that entity examines it against the prior art available and determines what claims are allowed. Up to this point, the process is pretty similar to the patent application process in the United States.

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What’s So Special About Tyler, Texas, Anyway?
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What’s So Special About Tyler, Texas, Anyway? | Pat Werschulz

Most people don’t even know where Tyler, Texas, is, but for patent litigators—that is, attorneys that try patent cases—it has become their home away from home. First, I need to give a little bit of background about the federal court system that a lot of people aren’t aware of. The federal courts have exclusive jurisdiction concerning patent and copyright cases in the United States. What does that mean? If you have a patent or a copyright and somebody infringes, i.e., copies you, you need to go to federal court to get justice. If you file a complaint in state court, it will be dismissed and you’ll be told, “Hey, you knocked on the wrong door. You need to go to federal court.”

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A Personal Story: My Path to Becoming a Patent Attorney (Part 2)
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A Personal Story: My Path to Becoming a Patent Attorney (Part 2) | Pat Werschulz

Last time, I explained the circumstances that led me to start law school after I “retired” from chemistry. Now the rest of the story. It’s very different to start law school when you’re…I’ll be kind to myself and use the word…”mature.” I was the second oldest student in my class, and I was the oldest woman. There literally were classmates who had been classmates of my sons. They would come up to me and ask if we were related, and I’d answer, “Yes, okay, I’m his mother.” So, I was thrown into competing with the younger generation.

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A Personal Story: My Path to Becoming a Patent Attorney (Part 1)
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A Personal Story: My Path to Becoming a Patent Attorney (Part 1) | Pat Werschulz

When I meet new clients, they don’t realize at first that being a patent lawyer is actually a second career for me. Since a lot of people find how I got to where I am today an interesting story, I’ve decided to share it with you, my readers. When I was in high school, I was captain of the debate team, and I seriously considered going into law. But back in the sixties, there weren’t many women who were going into law, and the ones who did were exceptional, like Ruth Bader Ginsburg.

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What Goes Into a Patent Application?
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What Goes Into a Patent Application? | Pat Werschulz

Many people are under the impression that drafting a patent application is just a matter of filling out forms, like any type of government application, and perhaps submitting a picture, as you do when you’re applying for a passport. Nothing could be further from the truth. In fact, preparing a patent application is a complex legal process. The United States Supreme Court has even said that drafting a patent application is the most complicated legal writing in the profession. A patent application has three main parts: the written specification, the drawings, and the claims. This is true of any type of patent applications, whether it’s for a utility application, a design application, or even (in those rare instances) a plant patent application.

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What is Patentable? The Phenomena of Nature Exception
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What is Patentable? The Phenomena of Nature Exception | Pat Werschulz

The answer to the question “what is patentable?” should be pretty straightforward, because the applicable law says: “a machine, a manufacturer, composition, or a process, or the improvements thereof, are patentable.” However, over the years, the courts have created very specific guidelines concerning what is or is not patentable. One exception to patentability is called the “phenomena of nature” exception. The Supreme Court discussed this exception in a 2013 case called Association for Molecular Pathology v. Myriad Genetics.

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What Should an Attorney Charge to File and Prosecute a Patent Application?
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What Should an Attorney Charge to File and Prosecute a Patent Application? | Pat Werschulz

Not surprisingly, one of the first questions clients usually ask me is “how much does it cost to get a patent?” While there are some government fees that apply regardless of which attorney you choose to file and prosecute (i.e. prepare the application and shepherd it through to issuance) your patent, the attorneys fees can vary. For a utility patent on a simple invention that doesn’t involve software, high tech, or extremely complicated chemistry, a budget of $12,000-$15,000 over the period that the patent is pending is a reasonable cost. This cost covers a substantial amount of work at two stages.

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Patent Law: Business As Usual
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Patent Law: Business As Usual | Pat Werschulz

{6 minutes to read} We have a new president. We have new members of Congress with a different distribution between the two parties. And probably before the Supreme Court sits for a new session in October, we’ll have a ninth justice. The question is: How are the changes in Washington going to affect patent law? First, a history lesson in patent law…

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FAQ: What Should I Expect When Meeting with a Patent Attorney?
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FAQ: What Should I Expect When Meeting with a Patent Attorney? | Pat Werschulz

{Read in 4:50 minutes} Many times when meeting with clients for the first time, they are very shy and say, “I’ve never met with a patent attorney before.” They don’t know what to expect or what they need to bring to the first appointment in order to discuss whether they should pursue a patent. There are some common things that every patent attorney will ask and review with potential clients. Some patent attorneys use what’s called a disclosure form, which asks the same questions that other attorneys go over in the initial meeting.

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How Can I Get My Patent Application Approved Faster?
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How Can I Get My Patent Application Approved Faster? | Pat Werschulz

{Read in 4:30 minutes} A question I often get is, “How long does it take to get a patent?” There may be business reasons to get your patent faster, such as to attract by showing investors you have a patentable idea. Or perhaps you just want to have patent protection before you introduce your product to the market. There may also be personal reasons; you need to move onto the next stage in your life and want to get this finished. So, how can you get your patent faster?

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Great News, Your Patent Application Has Been Rejected!
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Great News, Your Patent Application Has Been Rejected! | Pat Werschulz

{Read in 4:30 minutes} Whenever I start a conversation with a client with the phrase, “Good news: Your patent application was rejected,” I get: “What?” I always tell my clients from the very beginning that patent applications normally are rejected, and it’s a good thing. Over 90% of all patent applications have at least one rejection when they’re first examined by a patent examiner.

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DIY Patents: Some Things May Be Best Left to the Professionals
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DIY Patents: Some Things May Be Best Left to the Professionals | Pat Werschulz

Oftentimes I hear from people who have started the patent process on their own—called representing yourself. The legal term for that is pro se. I addressed some aspects in this issue a few months back, but I want to elaborate. Is This a Good Idea? I’ve also talked previously about the various reduced fee and pro bono opportunities for those inventors who do not have the financial resources to use a patent attorney to help them get a patent. Not everybody qualifies, so people are tempted to do it DIY.

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Freedom to Operate: Important for Every Type of Business
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Freedom to Operate: Important for Every Type of Business | Pat Werschulz

{4:50 minutes to read} Anybody who’s introducing a new product into the retail space needs to worry about whether that new product is infringing somebody else’s patent or trademark. Patent Issues Some of my clients who are in the process of getting a patent, or already have a patent, on a device don’t really understand it. They say, “I have a patent. Why do I need to worry if I’m infringing on somebody else’s?” Well, the truth of the matter is that most new things actually depend on pre-existing things. You may have something new, but elements of that may have existed and may be covered by somebody else’s patent.

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Part of the System: You and Your Voting Machine
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Part of the System: You and Your Voting Machine | Pat Werschulz

This year is an election year. It’s a very important federal election, with the office of the President at the top of the ticket. Everybody in the House of Representatives is up for election, as well as a third of the Senate. Although federal offices are on the line, voting is controlled by individual states. Each state has its own rules for voting and its own way of conducting the election. A Little History on Voting Machines When I was growing up, I used to go to the polls with my parents. I remember them being handed a paper ballot, then going into a booth, closing the curtain, marking the paper ballot, and returning it all folded up, then placing it into a ballot box.

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In the World of DIY, Should I Write My Own Patent Application?
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In the World of DIY, Should I Write My Own Patent Application? | Pat Werschulz

{6:50 minutes to read} While people can file patent applications themselves, it’s very difficult to get through the entire patent process without the help of a professional patent attorney or agent. There are many things on the internet and on TV to encourage people to DIY—do it yourself. There are programs on how to remodel your house, how to cook, and how to make clothes. You can find information through sites such as Pinterest and many others. When somebody comes up with an idea for an invention, the first question they ask is, “How much does it cost to get a patent?” When they find the answer, they think, “Well, why don’t I just try to do it myself?”

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How to Be a Pro with Pro Bono
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How to Be a Pro with Pro Bono | Pat Werschulz

{3:25 minutes to read} Many owners of startup businesses are understandably concerned about the cost of protecting their intellectual property. The patenting process can be expensive and a little bit scary, with an uncertain outcome. For those who are “bootstrapping” it—working with their own money, without borrowing or having partners or investors—it can be even harder. Such people usually can’t afford to pay for a patent attorney to help them with the application.

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Do I Need a Working Prototype Before Filing My Patent? Ask Edison!
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Do I Need a Working Prototype Before Filing My Patent? Ask Edison! | Pat Werschulz

{5:00 minutes to read} Today I want to talk about a book I just finished reading, called The Last Days of Night: A Novel by Graham Moore, about the patent wars between Thomas Edison and George Westinghouse.  Edison filed over 300 patent infringement lawsuits against Westinghouse. The Characters Thomas Edison – Attributed with having invented the light bulb, among many other things; patented the direct current (DC) lighting system.

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Has Your Fashion Design Fallen Victim to Gaps in Copyright Law?
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Has Your Fashion Design Fallen Victim to Gaps in Copyright Law? | Pat Werschulz

{5:20 minutes to read} Fall Fashion Week starts September 8, 2016, creating a lot of excitement and traffic in the New York area. That brings to mind: What type of intellectual property protections are there in the United States for fashion? Unfortunately, there’s not a lot to protect fashion design. If a designer comes up with a fabric pattern, that pattern can be protected by copyright law, but alas copyright is not allowed for useful articles—and clothing is considered a useful article.

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Design Patents: Form, Not Function
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Design Patents: Form, Not Function| Pat Werschulz

{4:10 minutes to read} A good design patent can be asserted in court and can protect a product. In previous blog posts, I’ve talked a lot about utility patents. Today, I’ll talk about design patents. Some of the laws and regulations that apply to utility patents also apply to design patents—but in many ways, design patents are unique unto themselves. Conceptually, it’s hard for people to wrap their brains around the difference between a utility patent and a design patent.

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What is the Cost to File a Utility Patent?
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What is the Cost to File a Utility Patent?|Pat Werschulz

{Read in 4 minutes} A common question people have is: How much does it cost to get a utility patent?The answer: It depends. There are many variables that can affect the total cost, such as the complexity of the invention and how much prior art already exists. That said, some aspects can be discussed in general terms. Keep in mind, we are discussing utility patents, not design patents. There are two components to filing a patent fee:

  1. The fee you pay the government
  2. The fee you pay your attorney

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2|Pat Werschulz

{4:00 minutes to read} Three Billy Goats Gruff are crossing a bridge. A patent troll materializes on the bridge and blocks their way. “Pay me a licensing fee or I’ll throw you off the bridge,” he demands. In order to understand the phenomenon of so-called “patent trolls,” one must first understand what a Non-Practicing Entity (NPE) is. NPEs are often the innovators who perform all of the research and development that goes into an invention—but instead of marketing and selling it themselves, theylicense it to a third party.  Many of my clients are individual inventors who do not wish to start a company around their invention but are hoping to license to manufacturers to produce and distribute.

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1 | Pat Werschulz

{4:00 minutes to read} On the first day of summer, the decision in the US Supreme Court case of Cuozzo Speed Technologies, LLC  v. Lee was handed down. The ruling affirmed the new practice of post grant reviews of patents already granted—which could have broad implications for patent owners, especially Non-Practicing Entities (NPEs), including so-called “patent trolls.” Post-grant review is a relatively new feature in US patent law that allows the Patent Trial and Appeal Board (PTAB) to invalidate patents which have already been granted.

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