Patent
infringement is the act of making, using, selling, or offering to sell a
patented invention, or importing into the United States a product covered by a
claim of a patent without the permission of the patent owner. Further, you may
be considered to infringe a patent if you import items into the United States
that are made by a patented method, unless the item is materially changed by
subsequent processes or becomes a trivial and nonessential component of another
product. A person “infringes” a patent by practicing each element of a patent
claim with respect to one of these acts. Further, actively encouraging
others to infringe patents, or supplying or importing components of a patented
invention, and related acts can also give rise to liability in certain cases.
2. Very active patent transaction market
The patent transaction market is rapidly taking off and is currently very active, which directly impacts the IP Marketplace.
3. USPTO moves to "First to File"
Today, if you file a patent, someone can come along and tell you they
had that idea first, and with much documentation and legal wrangling, deny you
the right to apply that invention. Tomorrow, nobody will care who came up with
the idea first — only who filed it. It’s called “First to File” (as opposed to
the previous “First to Invent”) and it shifts the system’s emphasis from the
date it was invented to the date its inventor dropped an application at the
patent office. (It does preclude stolen ideas; it’s been more accurately termed
“First Inventor to File.”)
4.
Global Competition is changing the IP playing field
I remember in class, our guest speaker states that 250,000 patents that impact smartphones. That's one in six
active patents today and that’s for an industry that is certainly less than
1% of US GDP. As a comparison, the pharmaceutical industry, often put forth as
an area where patents make sense, has accounted for a little over 6% of US
patents over the past 15 years. When I was doing research I found out that " in the pharmaceutical industry, there are approximately 46.8
patents per every 1,000 jobs, whereas in the computer and technology equipment
sector, there are 277.5 patents per 1,000 jobs."
It definitely appears that there's something of a
"bubble" going on around smartphone patents -- which is what happens
when you have a hot emerging area, combined with ridiculously broad patents. It
also makes for an astounding problem for anyone new who wants to enter the
space, especially if you don't have a massive war chest to license or fight in
court.
The smartphone in your hand is a
marvel of innovation, packing sophisticated computing and communications
technologies into a sleek digital device.
It is also a litigation magnet.
In the last few years, the
companies in the smartphone industry have spent billions of dollars buying
patents and hundreds of millions suing one another. Its insane!
To the winners of the patent wars,
the rewards will be rich. Mobile computing, or smartphones and tablets, is the
most lucrative and fastest-growing market in business.
Assuming a startup is an
innovation-based company that has a great new invention at the core of its
business, the first and oftentimes most critical mistake is not committing
early and seriously to intellectual property.
What it means is simply this —
company founders, executives and early employees should establish, as part of
the company’s culture, a focus and emphasis on IP.
2. Failing to Form an IP Strategy
and Plan
Entrepreneurs often charge into
their company’s intellectual property, wanting to file lots of patent
applications but not knowing what else to do or how to go about it. They know
they are supposed to “do something,” and they assume that “something” is to
file patent applications. Its important to file patent applications early and
often, charging ahead too quickly can lead to inefficient spending and patents
that suboptimal patent protection.
3. Neglecting to Thoroughly
Research Prior Art
One of the biggest initial
missteps is to rush or even skip altogether the process of searching for prior
art in their fields. This mistake may be made for any of a number of reasons.
Whatever the reason for
neglecting prior art searching, it is a big mistake and typically the first
mistake made in the intellectual property process. Researching and
understanding the prior art in your company’s area of invention is imperative
for two reasons: (1) You absolutely must determine, at least to the best of
your abilities within a reasonable budget, whether you might have significant
freedom-to-operate issues; and (2) You need to understand what you, the startup
company, might be able to protect through your own patent filings.
4. Waiting Too Long to File
Patent Applications
In addition to postponing or even
avoiding prior art searching, some startup companies wait too long to file
their patent applications. They commonly do this to postpone spending money,
because they want to compile further research and data on their invention, or a
combination of both. One obvious way to control burn is to keep legal fees to
an absolute minimum. With intellectual property, however, skimping too much in
the early days can be devastating in the long term and even in the short term.
5. Filing Poorly Drafted First
Patent Applications
In attempting to file patent
applications quickly and cheaply, some startups make big sacrifices in IP
quality. Poorly prepared patent applications may be too narrow in focus to
provide effective protection or too broad to properly support the claims, they
may contain speculative language without sufficient detail about the invention,
which may prevent the startup from protecting later inventions, they may simply
be so poorly written as to not support the claims at all, or they may have
several of these or other flaws.
Weak patent applications that do
not cover the company’s core products will be very difficult to “sell” to
potential investors and will also indicate to the investors a lack of
sophistication on the part of the company regarding intellectual property.
Finally, weak filings in the early history of a startup will turn into the
company’s most relevant, and likely most damaging, prior art for later filings.
Read full article here: http://www.law360.com/articles/513284/how-to-avoid-the-top-5-ip-mistakes-startups-make
Copyrights protect original works of authorship, such as literature, music, artistic works, and computer software. As the holder of a copyright, you have the exclusive right to reproduce, adapt, and distribute the work. A copyright exists from the moment the work is created, so registration is voluntary.
However, registered works may be eligible for statutory damages and attorneys fees in a copyright infringement suit, so it is recommended that you register at the U.S. Copyright Office. You can register your copyright online by completing an application, submitting a non-refundable fee of $35, and sending in a non-returnable copy of your work.
The average processing time for e-filed and paper applications is 2.5 months and 5.6 months, respectively. The duration of the copyright depends on several factors, but generally for works created after Jan. 1, 1978, the copyright lasts for the life of the author plus an additional 70 years and is non-renewable. You can visit the U.S. Copyright Office for more information.
2. Patents
A patent grants property rights on inventions, allowing the patent holder to exclude others from making, selling or using the invention. You obtain a patent by filing an application with the U.S. Patent and Trademark Office (USPTO).
There are 3 types of patents: utility, design and plant. A utility patent is the most common type, and it covers any process, machine, article of manufacture, or composition of matter, or any new and useful improvements thereof.
To qualify for a utility patent, the invention must be novel, non-obvious, and have some usefulness.
A design patent covers any new, original, and ornamental design for an article of manufacture, while a plant patent covers any new variety of asexually-produced plant. A design patent lasts 14 years, and a utility or plant patent lasts 20 years.
The patent application process is complicated and could cost thousands of dollars, so the USPTO recommends that you hire a qualified patent attorney or agent to file your patent. To maintain the force of the patent, you must pay fees due at 3.5, 7.5 and 11.5 years after the patent grant. The total amount of maintenance fees for a small entity (such as an independent inventor) is $4,430, while for others the total is $8,860.
3. Trademarks
A trademark is a word, phrase, symbol, or design that distinguishes the source of the goods of one business from its competitors. For example, the Nike "swoosh" design identifies shoes that are made by Nike.
Although rights in trademarks are acquired by use, registration with the USPTO makes it easier to enforce those rights. Before registering your trademark, you should conduct a search of federal and state databases to ensure a similar trademark doesn't already exist.
To apply, you must have a clear representation of the mark, as well as an identification of the class of goods or services to which the mark will apply. You can submit an online application, and filing fees vary according to several factors, including the form type and the number of classes of goods or services. Filing an application is complicated, so most applicants hire an attorney who specializes in trademarks.
4. Trade Secrets
A trade secret is a formula, process, device, or other business information that companies keep secret to give them an advantage over their competitors.
Examples of trade secrets are: soda formulas, customer lists, survey results, and computer algorithms. Unlike the other types of intellectual property, you can't obtain protection by registering your trade secret. Instead, protection lasts only as long as you take the necessary steps to control disclosure and use of the information.
Businesses use non-disclosure agreements, restricted access to confidential information, post-employment restrictive covenants, and other security practices to maintain trade secrets.
This was my favorite video from class
as it discussed fashion! Blakley starts his talk with a fun story about Prada.
She explains how she heard this amazing story about Miuccia
Prada, a famous Italian fashion designer. Prada goes to this vintage store in Paris with
a friend of hers. She's rooting around, she finds this one jacket by Balenciaga
-- she loves it. She's turning it inside out. She's looking at the seams. She's
looking at the construction. Her friend says, "Buy it already." She
said, "I'll buy it, but I'm also going to replicate it." Now, the
academics in this audience may think, "Well, that sounds like
plagiarism." But to a fashionista, what it really is, is a sign of Prada's
genius: that she can root through the history of fashion and pick the one
jacket that doesn't need to be changed by one iota, and to be current and to be
now.
I really enjoyed this talk, as it talked
about creative collaboration in such a fun way. Blakley explains that while
many creative industries are shackled by patents and copyrights, there is one
that remains the Wild West — fashion. In this talk she explains how this is a
good thing. Because trademarking is virtually the only type of intellectual
property in fashion, a culture has developed where designers build on each
other’s ideas and where discount takes on popular items are created for different
shoppers.
Watch the Video: http://blog.ted.com/6-talks-about-problems-with-patents/
He
starts his talk saying that his company Fark.com was sued along with many other large corporations such as Yahoo,
MSN, Reddit, AOL, TechCrunch and others by a company called Gooseberry Natural
Resources. Gooseberry owned a patent for the creation and distribution of news
releases via email. Now it may seem kind of strange that such a thing can
actually be patented, but it does happen all the time.
Curtis explains that the
problem with these patents is that the mechanisms are obscure and the patent
system is dysfunctional, and as a result, most of these lawsuits end in
settlements. And because these settlements are under a non-disclosure
agreement, no one knows what the terms were. And as a result, the patent troll
can claim that they won the case. Also, “Patent
troll” is a term given to anyone who files a patent for something already being
done, and then sues the people already doing it
He explains that one of
the major problems with patent law is that, in the case that when you are sued
by a patent troll, the burden of proof that you did not infringe on the patent
is actually on the defendant, which means you have to prove that you do not
infringe on the patent they're suing you on. And this can take quite a while. You
need to know that the average patent troll defense costs two million dollars
and takes 18 months when you win. That is your best case outcome when you get
sued by a patent troll. Watch the video: http://blog.ted.com/6-talks-about-problems-with-patents/
