Law Offices of Thomas H. Stark, lawyers in Research Triangle Park, NC, North Carolina

Copyright and the Commerce Clause

The Commerce Clause of the U.S. Constitution gives Congress the authority "to regulate commerce with foreign nations, and among the several states." Starting at the time of the New Deal, the courts have read that clause expansively, saying that it gives Congress the authority to regulate virtually anything that affects interstate or foreign commerce. Federal trademark protection gets its authority from the Commerce Clause, and trademarks are protected as long as they are being used.More...

Patent Claims and the Definiteness Requirement

An applicant for a patent must include in the specification accompanying the application for the patent one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his or her invention. Patent claims serve two functions. First, they define the invention for the purpose of applying the conditions of patentability, the statutory bars, and the disclosure requirements. Second, they define the invention for the purpose of determining infringement.More...

Reexamination of Patents

After a patent is issued by the United States Patent and Trademark Office (USPTO), the discovery of prior art or publications not noticed prior to the patent's issue may raise questions as to the validity of the issued patent. In such a case, a patentee or a third party may file an application for reexamination of the patent in the USPTO. For a third party, reexamination provides a lower cost alternative to a conventional lawsuit for challenging the validity of a patent. If the third party is an unsuccessful infringement defendant, a reexamination that results in the invalidation of a patent may provide vindication of that defendant's rights despite the results of the court case. For the patentee, the reexamination process may reveal the need to narrow a patent's claims in order to be in a better position to fend off a challenge to the patent's validity. In addition, the USPTO may take it upon itself to reexamine a patent without it being requested by the patentee or a third party.More...

Patent Maintenance Fees

Utility patents apply to inventions and processes and are distinguished from design and plant patents. Under current patent law, the term of a new utility patent is 20 years, during which the patent holder has the right to exclude others from using, making, selling, or distributing the invention or process. However, for utility patents based on applications filed on or after December 12, 1980, the 20-year patent term is subject to the payment of maintenance fees. More...

Actual and Intended Use of Trademarks

Trademark rights are gained by actual use of a mark rather than by registration. Generally the first party who uses a mark in commerce has the right to use the mark in that geographic area as well as in the natural zone of expansion for that geographic area. Any shipment of goods bearing the trademark across a state line in the normal course of business satisfies the "use in commerce" requirement. Token sales made solely to establish trademark use do not constitute legally sufficient "use." More...