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Your Sutherland Intellectual Property Attorney
Intellectual property law splits into four main areas, patents, trademarks, copyrights, and trade secrets, and each has its own rules on where a case is filed and how long you have. The sections below explain those rules for a matter arising in Sutherland. Keep reading for the deadlines, the registration steps for trademarks and copyrights, the court structure for Lincoln County, the trade secret rules, and the elements behind the most common infringement claims, citing the statute each time. Deadlines in intellectual property cases run on fixed dates, so learning them early usually helps more than trying to catch up later.
Quick Answers on Patents, Trademarks, Copyrights, and Trade Secrets
- A patent case is a federal case. The district courts have original jurisdiction of any civil action arising under an Act of Congress relating to patents (28 U.S.C. 1338(a)), and infringement damages are limited to the six years before the complaint (35 U.S.C. 286).
- Federal trademark registration is available to the owner of a mark used in commerce or to a person with a bona fide intention to use one (15 U.S.C. 1051(a)(1), (b)(1)).
- Register first, sue second. No civil action for infringement of the copyright in a United States work can be instituted until registration has been made or refused in the way the statute provides (17 U.S.C. 411(a)).
- Federal trade secret claims must be brought within 3 years after the misappropriation is discovered or should have been discovered with reasonable diligence (18 U.S.C. 1836(d)).
- A federal case from Sutherland goes to the District of Nebraska (28 U.S.C. 107), which sits in Lincoln, North Platte, and Omaha.
Patents, Trademarks, Copyrights, and Trade Secrets Compared
A patent protects an invention. Whoever invents or discovers a new and useful process, machine, manufacture, or composition of matter may obtain a patent, subject to the conditions and requirements of the patent statute (35 U.S.C. 101). The term is 20 years from the date the application was filed (35 U.S.C. 154(a)(2)).
A brand is protected as a trademark when it functions to identify and distinguish goods from those of others and to indicate the source of the goods (15 U.S.C. 1127). The same statute defines a service mark for the source of services.
A copyright question begins with whether the work is an original work of authorship fixed in a tangible medium (17 U.S.C. 102(a)) and whether what was copied was expression rather than an idea, system, or method (17 U.S.C. 102(b)).
Business and technical information such as plans, formulas, and processes qualifies as a trade secret only if the owner has taken reasonable measures to keep it secret and it derives independent economic value from secrecy (18 U.S.C. 1839(3)).
Why Timing Matters in Intellectual Property Disputes
Copyright: a civil action must be commenced within three years after the claim accrued (17 U.S.C. 507(b)). Because a United States work must also be registered before an infringement suit can be filed (17 U.S.C. 411(a)), the registration step should not be left until after the dispute begins.
For a federal trade secret claim, the three years run from discovery of the misappropriation, or from when it should have been discovered by reasonable diligence, and a continuing misappropriation is treated as a single claim (18 U.S.C. 1836(d)).
Patent infringement damages reach back at most six years before the complaint (35 U.S.C. 286), so a suspected infringement is worth reviewing promptly.
Do not assume that a state-law claim follows the federal deadlines. Nebraska’s limitation periods and the point when a claim accrues are matters of Nebraska statutes and case law, and an attorney can check the dates for your particular claim.
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Registration Steps for Trademarks and Copyrights
Registration on the federal principal register begins with an application and verified statement. The statute allows the owner of a mark used in commerce to apply (15 U.S.C. 1051(a)(1)) and separately a person with a bona fide intention to use (15 U.S.C. 1051(b)(1)).
Federal registration is not the only route. Nebraska’s trademark registration provisions, the Trademark Registration Act, Neb. Rev. Stat. 87-126 and following sections, provide for a state filing with the Nebraska Secretary of State that operates separately from the federal register.
For copyright, protection attaches to original works fixed in a tangible medium (17 U.S.C. 102(a)), but before an infringement suit on a United States work can be instituted, preregistration or registration of the copyright claim must have been made (17 U.S.C. 411(a)). A work created on or after January 1, 1978 lasts for the life of the author plus 70 years (17 U.S.C. 302(a)).
A patent application starts the 20-year term (35 U.S.C. 154(a)(2)), and the invention must fit a statutory category such as a process, machine, manufacture, or composition of matter (35 U.S.C. 101). An attorney can review both points before you file.
The Federal Court for Lincoln County
Federal law fixes the forum for most intellectual property claims: exclusive federal jurisdiction over patents and copyrights (28 U.S.C. 1338(a)), original federal jurisdiction over Defend Trade Secrets Act claims (18 U.S.C. 1836(c)), and concurrent state jurisdiction over trademarks.
There is only one federal district in Nebraska. The District of Nebraska hears federal cases from Lincoln County and holds court in Lincoln, North Platte, and Omaha (28 U.S.C. 107).
Trade Secrets and Trademarks Under Nebraska Law
The federal civil action for trade secrets (18 U.S.C. 1836(b)(1)) is filed in federal district court (18 U.S.C. 1836(c)), and a dispute from Sutherland may also raise a claim under the Trade Secrets Act (Neb. Rev. Stat. 87-501 to 87-507). Which claims fit depends on the facts.
Trademark protection has a state layer as well. A state trademark registration in Nebraska is filed with the Nebraska Secretary of State under the Trademark Registration Act, Neb. Rev. Stat. 87-126 and following sections, and it is separate from federal registration on the principal register (15 U.S.C. 1051).
Whether to plead federal claims, state claims, or both turns on the facts, and an initial conversation with an attorney is the way to sort that out.
The Basics of Each Type of Claim
Patent Infringement
A patent claim asks whether the accused product or process is covered by the patent and whether the accused party acted without authority. The forms of infringement listed in 35 U.S.C. 271(a) are making, using, offering to sell, selling, and importing.
A patent case is filed in federal district court (28 U.S.C. 1338(a)).
Disputes Over Names, Logos, and Brands
Two federal provisions do most of the work in trademark cases: 15 U.S.C. 1114(1)(a) for registered marks and 15 U.S.C. 1125(a)(1) for misleading uses of any word, term, name, symbol, or device, registered or not.
State trademark registration in Nebraska is filed with the Nebraska Secretary of State under the Trademark Registration Act, Neb. Rev. Stat. 87-126 and following sections, separate from the federal statutes.
Copying of Creative Work
Whether copying is actionable begins with what is protected. Copyright subsists in original works fixed in a tangible medium (17 U.S.C. 102(a)) and does not reach ideas, procedures, processes, systems, or methods of operation (17 U.S.C. 102(b)).
A civil action must be commenced within three years after the claim accrued (17 U.S.C. 507(b)).
Protecting Confidential Business Information
The federal claim in 18 U.S.C. 1836(b)(1) is limited to trade secrets connected to interstate or foreign commerce, and the information must satisfy 18 U.S.C. 1839(3) to count as a trade secret at all.
A continuing misappropriation is treated as a single claim for the federal deadline (18 U.S.C. 1836(d)).
What a Court Can Award or Order
The patent statute provides for damages adequate to compensate for the infringement, not less than a reasonable royalty (35 U.S.C. 284), and for injunctions to prevent the violation of a patent right (35 U.S.C. 283).
In trademark cases, courts have the power to enjoin violations (15 U.S.C. 1116(a)), and a plaintiff who establishes a violation may recover profits, damages, and costs, subject to sections 1111 and 1114 and the principles of equity (15 U.S.C. 1117(a)).
A copyright owner can choose between actual damages plus the infringer’s profits attributable to the infringement, and statutory damages (17 U.S.C. 504(a), (b)), and statutory damages range from $750 to $30,000 per work as the court considers just (17 U.S.C. 504(c)(1)).
The registration date can decide whether statutory damages and attorney’s fees are available at all. Section 412 of the copyright statute bars them for infringement commenced before registration, subject to a three-month window after first publication.
Trade secrets: under the federal statute a court may grant an injunction to prevent actual or threatened misappropriation, award damages for actual loss and for unjust enrichment, or impose liability for a reasonable royalty, and if the misappropriation was willful and malicious, award exemplary damages of not more than 2 times the damages awarded, and attorney’s fees in stated circumstances (18 U.S.C. 1836(b)(3)).
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What an Attorney Will Want to See
An attorney will usually begin with dates: creation, first disclosure, first use in commerce, first publication, and discovery of the problem. Gathering them ahead of time saves a first meeting for the questions that matter.
If the issue is a patent, gather technical drawings, descriptions, and any application numbers. If it is a trademark, gather the mark, examples of use, and registration information.
Bring the original work and dated drafts for a copyright issue, and a description of the information, access records, and confidentiality measures for a trade secret issue.
Sutherland: Courts, Counties, and Getting Started
A matter from Sutherland belongs to Lincoln County and, when it is a federal case, to the District of Nebraska. Local practice, such as how quickly cases are scheduled and how disputes are handled, shapes how the general rules on this page play out.
The Nebraska intellectual property overview covers every city we serve across the state. Our coverage in this part of Nebraska also includes North Platte, Ogallala, and Arthur. If your matter is an injury claim instead of an intellectual property dispute, see our Sutherland personal injury page.
Frequently Asked Questions
What can be patented?
A new and useful process, machine, manufacture, or composition of matter may be patented, subject to the conditions and requirements of the patent statute (35 U.S.C. 101).
Does an unregistered brand have any protection?
Possibly. A civil action can be brought under 15 U.S.C. 1125(a)(1) by a person who believes he or she is or is likely to be damaged by a false designation of origin likely to cause confusion, and Nebraska law may offer additional protection.
Do I have to register a copyright before I sue?
For a United States work, yes. No civil action for infringement of the copyright may be instituted until preregistration or registration of the copyright claim has been made (17 U.S.C. 411(a)), with a provision for cases where registration was refused.
How long do I have to bring a trade secret claim under federal law?
Three years after the misappropriation is discovered or, by the exercise of reasonable diligence, should have been discovered, and a continuing misappropriation counts as a single claim (18 U.S.C. 1836(d)).
Do I have to file in federal court?
For patents and copyrights, yes: the federal jurisdiction is exclusive (28 U.S.C. 1338(a)). Trademark claims may also be brought in state court, and a federal trade secret action is filed in federal district court (18 U.S.C. 1836(c)).
Do federal deadlines apply to Nebraska state-law claims?
Not automatically. Nebraska state-law claims have their own limitation periods and accrual rules, set by Nebraska statutes and court decisions, and an attorney should check them.
Do deadlines differ for different kinds of intellectual property?
Yes. Copyright and federal trade secret claims each have a three-year period, measured differently (17 U.S.C. 507(b); 18 U.S.C. 1836(d)), and patent damages are limited to six years before the complaint (35 U.S.C. 286).
Can I protect a logo or slogan?
A word, name, symbol, or device used to identify and distinguish goods or services and indicate their source can be a trademark or service mark (15 U.S.C. 1127).
Connect With a Sutherland Intellectual Property Attorney
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