What happens if I used an invention for some commercial use after its public disclosure and before it got patented? In the US, inventors have up to 1 year to file for a patent to the USPTO after an invention has been publicly disclosed, and by default the USPTO takes 1.5 years to publish the patent application after it was filed. This means that during 2.5 years, an invention might be displayed somewhere publicly before the public is aware that a patent has been filed for it. What happens if I used an invention for some commercial use after its public disclosure and before it got patented? Do I have the same obligations toward the inventors as if I had used the invention after it got patented?
Until and unless a patent is issued, the inventor has no exclusive rights. Assuming a patent is granted, the issued claims will be what defines infringement. What you do before the patent is issued is not infringement since there is nothing to infringe. However, if there is a finding of infringement in the U.S. for activity after a patent is issued, the patent owner can possibly also get royalties for activities you engaged in (in the U.S.) before the patent was issued under 35 U.S.C. § 154(d). This ABA article explains its effect in practice. The rights the patentee has in this regard are called &quot;provisional rights&quot;. Nothing at all to do with provisional applications. In the U.S., once a patent application is published, someone who does something that would infringe a hypothetical future patent with claims very similar to the published claims and who is on notice of the publication, can be subject to future royalties. If the issued claims are quite different from the published claims, this law does not apply. As mentioned in the ABA article this was put in place by Congress when the 18 month publication requirement went in. That was part of an international treaty that has the U.S. conform to the publication regimen the rest of the world had been doing. Prior to that treaty U.S. patent applications were confidential up to the day of grant. If an applicant decided the allowed claims were not worth the disclosure, they could abandon the patent application and opt to keep it a trade secret instead. This is still possible by asserting, in a non-publication request, to the USPTO that no filing outside the U.S. will be made.
In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any.
Trivial is hard to judge after the fact due to hindsight bias. Once you know the answer to a riddle it seems obvious but you couldn’t figure it out without already knowing it. The criteria for get a patent in the US does not include the word or concept “trivial”. It does include non-obviousness. To reduce hindsight bias an examiner needs to follow a process of identifying all sub- components of an invention in the prior art and then making a good argument as to how someone of ordinary skill in the field would be motivated to put them together. Also there is no measure of improvement over past technology required for a patent. A trivial improvement in cost or performance is fine. Actually no objective improvement is required at all. An existing solution might work as well or better than your invention. That means probably no one will buy it but if it is novel and not obvious one can get a patent.
Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe.
Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc).
Once you withdrew the complaint without prejudice, any statute of limitations benefit you obtained from filing the lawsuit evaporated. From a legal perspective, it is as if you never filed at all, except that the lawsuit that was filed proves that you had notice of the claim at the time you filed, so you cannot take advantage of any "discovery rule" that allows a statute of limitations to start running from the date that you knew or should have known of your right to file a lawsuit. In all likelihood, the statute of limitations has now run, although that would depend upon the jurisdiction in which it was filed. Some jurisdictions toll the statute of limitations during a period of minority, but that tolling might very well be insufficient to allow the claim to be filed 20 years later.
Many attorneys would have an "intake form" that they would like you to complete in advance, and every lawyer will want your name and contact information at a first meeting. But, other attorneys would prefer to meet with you first, without getting details about the work to be done, as many patent applicants are very reluctant to put information in writing that is shared with others and many patent applicants don't know what is relevant. There is no special terminology for the things that you should prepare for prior to meeting with an attorney. And, anyone who completed a provisional patent application is not so half-baked in their idea that it is premature to meet with a patent lawyer. Having done a provisional patent application is more than enough due diligence and preparation for such a meeting. The marginal cases where preparation by clients is often lacking are those cases where the concept of the invention isn't fully fleshed out yet and the inventor is trying to work with a patent lawyer to figure out what part of "idea space" isn't already protected by patents. There are basically three kinds of information that are relevant: When was the invention invented, made public, or shared with anyone? Is there anyone else who could be considered a co-inventor? For example, if you have an employment agreement discussing intellectual property, you should bring it. You would need your full provisional patent application, which will explain most of the necessary information but may need to be clarified for a final application. If visual aids are helpful to explaining your invention or you have prototypes small enough to bring with you, you should bring them, even if they are beyond the scope of the provisional patent application's contents. You ideally should do some due diligence regarding "prior art" to provide some assurance that the idea you propose hasn't already been patented or discovered, but not every patent applicant has the ability to do such a prior art search. At a minimum, you should be able to say in good faith that you've never seen a similar invention and explain why you think personally that your invention is novel. Generally, you should not order a professional patent search before you have discussed it with your patent attorney. But, if you are able to do so and have reviewed existing patents, reviewed literature you are able to access, and have done some Google searches for similar ideas, that would be more than reasonable preparation. But, don't delay meeting with a patent lawyer because you haven't done those things. A patent lawyer needs lead time to prepare the application by the deadline for doing so (ideally, several months, and at a minimum, several weeks to a couple of months). In addition, you should be prepared to discuss why your invention is not obvious to someone skilled in the relevant field and what utility your patent has to a user of the invention. Similarly, you should be ready to discuss the larger context of the field in which you have an invention, such as how others usually deal with the issue that your invention addresses in the status quo and what other notable new inventions there are in that field. "Buzz words" related to your kind of invention are also very helpful for doing searches of prior art. Finally, you should be prepared to demonstrate that you have the capacity to pay for the patent lawyer's work. Patent lawyers almost never do pro bono (i.e. charitable) patent work for individual inventors (sometimes they might, for example, for a university clinic aimed at inventing things for use in the Third World), and are loathe to do work on a contingent or on credit basis, although sometimes they would be willing to work on credit if you could provide security for the debt beyond the patent itself (e.g. putting the equity in your home up as collateral). A patent lawyer would almost always charge more than $10,000 to do the work beyond an initial consultation (which wouldn't be free but might cost $100-$1000), and often a patent could cost $100,000 for each patent for legal work, if it was at all complex. Patent lawyer have among the highest hourly rates of all kinds of attorneys. So, the more clearly thought out you are, the better organized your paperwork is, and the more efficiently you can communicate your invention, the less you will pay for meeting with the patent lawyer while "the meter is running." Even in the unlikely case that the patent lawyer will do the work on credit, the patent lawyer will at a minimum insist that you provide the filing fees up front. If you are truly broke, you need a business partner to finance the patenting process for you. You can look at the relevant fee schedules at the patent and trademark office website. The patent lawyer would also expect any out of pocket costs for things like a professional prior art search, having quality drawings prepared, courier fees, and mailing costs to be paid in advance, even if doing some of the legal work on credit. The prior art search is the most expensive item and it would usually cost in the low single digit thousands of dollars.
Does the registrant still have common law rights over the mark? Maybe. According to Yospin Law, Just because a mark is listed as “dead” at the USPTO, does not mean it is available to use without registration, or to register. It’s possible that the registrant of the trademark abandoned the federal trademark registration, but is still using the mark – and so still has common law trademark rights. Does this mean the registrant can never register this mark again? No. It does not mean the trademark can never be registered again. However, a new application for registration of the mark must be made. This registration is completely separate from the previous one - it's effectively registering a new mark that happens to be identical to an old one, without the problems that would normally cause. Can another entity register this mark for the same purpose? Possibly. If it remains in use under common law rights, you would face an uphill battle to successfully register it for yourself. If it is truly abandoned, you can apply for registration, but as Beth Hutchens discussed, this is not a simple matter of filling out the form and celebrating your new acquisition. Here is a handy brief summary, but for any actual case, your first step should be to consult a patent and trademark attorney, particularly one experienced in the jurisdiction you intend to use the mark in.