Legal Question in Intellectual Property in California

Patent Law

I had an idea which was identical to gradefund dot com (people can donate money to students). I even bought a webstie years ago for it, but people told me I could not copyright an idea. Now i found this and im crushed to see it, and it says patented pending. What does this mean?? What are they patending?? am i screwed here??


Asked on 12/28/08, 9:18 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Patent Law

True, you can't copright or trademark an idea. That's what patents are for, sort of......but not every idea is patentable, either.

In this case, more likely than not, the basic business idea is not patentable. Patents are for inventions that represent breakthroughs in knowledge, science, useful devices, etc., and business concepts are not generally considered novel or useful enough to be patentable. The term "patent pending" may or may not mean that a patent has really been applied for, and if one has, it may or may not be granted.

Your first step should be to find out if a patent is really pending, and if so, to obtain a copy of the application and see what it covers.

Your next step would then be to get a professional opinion on whether the patent is likely to be granted and the extent to which it would, if granted, restrict you from carring out your business idea.

You can probably do step #1 yourself with the help of some books or on-line research into how to determine the patentability of an invention. Step #2 would require a consultation with a patent attorney.

Your actual questions cannot be answered without at least Step #1 taken, and then probably #2, but that depends on the results of Step 1.

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Answered on 12/28/08, 4:48 pm
Mark Torche Patwrite Law

Re: Patent Law

Bryan,

There are many specifics that are needed to fully answer your question, but in general, your information regarding copyright is correct. It is not the idea that is protected, but rather the expression of that idea in written word, work of art, or other expression such as music, dance, etc.

As to a patent, ideas are also not patentable, but business methods have been since State Street Bank decision, although a recent ruling in Bilski brings these kind of patents into question once again. From your description, it is likely that the patent is for the method as embodied in the website, although this is merely conjecture on my part without reading the application.

You may or not have a case against the applicants. The US is a “first to invent” country, but you would need to talk with an attorney specializing in intellectual property litigation. I would not be too optimistic about your chances however and it is likely to be expensive.

If you have other questions, please feel free to ask.

Mark David Torche, Esq.

Patwrite LLC

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Answered on 12/29/08, 1:45 am


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