How can I deal with copywriting or trademarking? 2 Answers as of November 23, 2010

How can I find out if something has been copywritten or trademarked yet and how much will it cost to patent? In addition, how would I go about getting funding to develop and manufacture short of selling the idea or invention?

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Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
Copyrights attaches when on original work is reduced to a tangible medium of expression, and and trademark rights accrue upon usage. Thus, you don't file for copyright or trademark, you file to register the copyrights or trademark rights that you already have. Filing a simple copyright registration application has out of pocket costs of $50, and probably $100 in attorney / paralegal time. Searching copyrights is a nightmare, and can cost many thousands of dollars, and often cannot be done well. Filing a simple trademark registration application for a single mark in a single class has out of pocket costs of $325, plus attorney / paralegal fees of about $100 - $150. Trademark searching can be done, and usually adds an extra $500 or so. Additional charges for both copyright and trademark prosecution may well be required for arguing with the respective offices.

Patenting is a whole different world. Preliminary prior art searching typically runs about $1500. Filing a provisional application with a minimal search costs about $3500, which includes preliminary searching. Filing a formal utility application runs about $5000 more than a provisional. Thus, filing a utility as the initial application would usually run $8,000 - $10,000, and filing a provisional and then a utility would be the same amount.

It might be possible to secure a research grant to satisfy the funding requirements. But most often seed stage funding is done through ones own savings, friends and family.
Answer Applies to: California
Replied: 11/19/2010
Malhotra Law Firm, PLLC
Malhotra Law Firm, PLLC | Deepak Malhotra
I recommend that you find an "incubator" to help you with a startup and to help these questions. Also try SCORE and the MBA department of a nearby university for advice. Commercial banks also are often well connected and have lists of professionals who may be able to help you.

Funding is extremely difficult to obtain at the present. Angel funding (friends and relatives) is a common way for new businesses to start. Companies rarely buy inventions from individuals unless a product has been manufactured and sold and profit margins can be demonstrated. It is sometimes possible to enforce a patent against an infringer using contingency fee litigation without having to manufacture a product.

It is reasonably easy to file your own copyright application using the website at by following the instructions on the website. If you did not copy someone elses work, odds are very low that you will infringe someone elses copyright.

Trademark searches are best performed by attorneys. You can try your own search at but be aware that similar sounding marks, translations, marks with different suffixes or prefixes, and synonyms may be conflicting with yours. The standard is whether there is a "likelihood of confusion." An exact duplication is not the standard. In addition, there are common law marks that are not registered anywhere that can cause problems for you.

Be aware that most attorneys will only quote an estimated fee for preparing an application. You should consider the start-to-finish costs before starting.

The fee for obtaining a patent depends on the complexity and the number of rejections received by the U.S. Patent and Trademark Office. In a negotiation session, where the applicant tries to get broad coverage for a wide range of alternatives, and the Office tries to limit the applicant to one specific design, the Office routinely rejects everything and the applicant has to file amendments and responses in multiple rejection/response cycles until claims of a reasonable scope are allowed.

The average legal fee for preparing a patent application on an invention of minimal complexity was $7879 in 2009. For relatively complex mechanical, the average fee was $9699. For electrical or software, $13,277. These are just averages. There is also a government filing fee of about $600 for a small entity.

The average fee for each amendment/argument was $2322 for minimal complexity (rare) and $3135 for a difficult rejection for a mechanical case, $5021 for an electrical case. You should plan on about three of these rejection/response cycles, though it could take more. To reply a third time, a Request for Continued Examination and another government fee of about $600 is required. In some cases, if an examiner is being particularly difficult, an appeal may be advisable, and an average cost for a written appeal brief was $5547. If a Notice of Allowance is received, there will be an Issue fee of about $1000 government fees for a small entity plus a $200 service fee for filling the forms and attending to allowance formalities.

If these fees seem high, be aware that if there is an infringement, the average cost for a patent infringement trial is over a million dollars.

These are averages for the U.S. My fees tend to be a little lower than the averages even though I have 20 years of patent preparation and prosecution experience.

If you would like a more precise quote, I would require a written disclosure and I can send an invention disclosure form for you to use.

Please let me know if I can be of any further assistance. Unless I hear from you, I will assume that you are not proceeding with me. No attorney-client relationship exists until a representation agreement is signed and an advance fee is paid.

Thank you again for your inquiry and best of luck with your project.
Answer Applies to: Washington
Replied: 11/19/2010
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