The University of California (UC) system is extremely inventive and one of the top patenting Universities in the United States, which is why recently we decided to include them in our Companies We Follow series. See University of California Improves Diagnosis, Treatment of Arthritis. In that article Steve Brachmann explained that UC has seen patent applications publish for a number of interesting technologies, including new diagnostics and treatments for arthritis, as well as methods of making red-blood cell particles, methods of tissue generation and nanowire mesh for solar fuel generators.
Also profiled was an interesting patent application — United States Patent Application 20130127708— titled Cell-phone based wireless and mobile brain-machine interface, which was published on May 27, 2013. In reading the aforementioned article about UC patenting I decided this patent application needed separate treatment because the patent application explains that the innovation could be used to “detect abnormalities and transfer the information through cell-phone network…” Sounds almost like the plot for a science fiction movie! But discussion of uses, movie plots and potential ability to monitor brain activity puts the cart before the horse. Let’s take a step back and look at the technology.
Martin Schwimmer, lead attorney for Leason Ellis and author of the Trademark Blog.
Leason Ellis LLP, an intellectual property law firm, is suing Patent & Trademark Agency LLC and Armens Organesjans in the United States Federal District Court for the Southern District of New York. Patent & Trademark Agency LLC, is a New York business entity, and Organesjans, an individual who resides in Latvia, is the principal owner. The case, 7:13-cv-02880, has been assigned to the Honorable Vincent Briccetti.
The firm is back at it again in 2013 taking on another alleged trademark scam operation after successfully prevailing in a similar claim just over 1 year ago against USA Trademark Enterprises. See Trademark Scammers Out of Business Thanks to Leason Ellis. In that case, 7:12-cv-0620 (SDNY), alleged that the defendants had engaged in false advertising and unfair competition by marketing a so-called “catalog” of trademark registrations. The case settled for $10,000, which the firm donated to the United States Patent and Trademark Office (USPTO). Thus, the defendants would do well to stand up and take notice. It seems that Leason Ellis is living by the the words that mark the youth of my generation — “We’re not gonna take it, no, we ain’t gonna take it, we’re not going to take it any more!”
The multi-count Federal Complaint alleges that the defendants market their promotional materials to cause consumers to wrongly believe that it is an official governmental entity. The complaint asserts claims of federal unfair competition under 15 USC 1125(a), federal false advertising under 15 USC 1125(a) and New York statutory law, unfair competition under New York common law, deceptive acts and practices under New York statutory law, and tortious interference with prospective economic relations. The complaint also specifically alleges that the defendants are engaged in the unauthorized practice of law.
It’s not often that plans for a big 20th anniversary concert tour are marred by so much controversy, but that seems to be the case for the rock band, Stone Temple Pilots (STP). STP has filed a lawsuit against its former lead singer, Scott Weiland, claiming in part that they kicked him out back in February of 2013, yet Weiland (who now performs solo) continues to use the band’s name for his own performances, which allegedly violates the band’s partnership agreement.
Well, apparently, Weiland didn’t get the memo that he had been kicked out because in a letter to his fans that he posted on Facebook a few weeks ago, he stated, “First of all, they don’t have the legal rights to call themselves STP because I’m still a member of the band.” He also noted that when he does his solo tours, he uses his own name.
Earlier today Cornell University, INSEAD, and the World Intellectual Property Organization (WIPO) released the rankings for the 2013 Global Innovation Index. Switzerland and Sweden remain #1 and #2 respectively, but the United States jumped 5 places to #5.
According to the report, the United States benefited from a strong education base, with many top-ranked universities. Additionally, over the last year the U.S. has seen significant increases in software spending and employment in knowledge-intensive industries. The U.S. was last in the top 5 of the Global Innovation Index in 2009, when it placed #1.
There was also good news for innovation in general, which is alive and well despite the global economic crisis, which drags on. The report explains that “[r]esearch and development spending levels are surpassing 2008 levels in most countries and successful local hubs are thriving.”
The Zup™ is perhaps the most cool and innovative wake board you have ever seen. There are a number of other patent applications pending, trademark applications pending and ongoing research and development for future products. The Zup™ is special because literally anyone can ride the board and participate in the fun. I knew that Glen was onto something when he showed me a video of an early prototype in use years ago. There was a giant fellow — 6’8″ and easily 290 pounds — who managed to get up on the board with ease. I thought to myself, “that shouldn’t happen!” Being a big guy myself I understand how difficult, if not nearly impossible, it is to get up on a traditional wake board. In that same video I also saw an elderly grandmother get up on the board. Neither size nor upper body strength mattered. It was then I knew Glen had something special.
Glen will easily be one of my most successful clients ever when all is said and done and we are telling our stories at our retirement parties. An inventor on several patents prior to his entry into the wake board market, Glen has simply done everything right along the way. He has listened to advice and has surrounded himself with an all-star advisory group of industry insiders who are very optimistic about the likely future success. Thus, this is a story of growing success, but also one of perseverance and commitment. It illustrates the importance of moving forward with a patent position to secure rights that can be build upon, and how critical it is to surround yourself with people knowledgeable about the industry. As Glen explains below in our interview he managed to connect with several key industry leaders who helped open doors for the Zup™ and who are on his advisory board.
To all the journalists, reporters, mainstream technology and business bloggers, and other well meaning but seriously misinformed writers:
PLEASE DO NOT SPEAK ON INTELLECTUAL PROPERTY MATTERS THAT YOU DON’T REALLY UNDERSTAND!
Before you decide to bash the United States patent systemor teach Patents 101 in 300 words or less, please acknowledge your limited knowledge of the subject matter. Please tell your audience that your article is only part of a much larger story that can’t be covered in a single column or blog post. Above all, please do not encourage them to take actions that could have serious legal consequences.
You are telling an incomplete story.
What you don’t know, and what you aren’t reporting on, is an important piece that’s missing from mainstream media coverage of today’s intellectual property issues. And that is a problem.
Patent Freedom’s data shows that roughly 56% of all NPE suits are brought by companies that are owned or controlled by individual inventors — the original assignees of the patents involved. If you include companies in which individual inventors receive a substantial portion of any license fees or other recoveries, the number is more like 80%. So, why all this hysteria about the evils of entities enforcing and licensing patents, rather than those manufacturing products? The answer is because the debate (if you want to call it that) serves the interests of a group of high-tech companies on the West Coast and some foreign companies who, together, have thrown hundreds of millions of dollars at political groups to influence Congress and even the President.
Incredibly, even the Chief Judge of the Federal Circuit has joined the chorus, lending his name to an article that appeared in the New York Times on June 4, 2013 — an article that includes this statement:
The onslaught of litigation brought by “patent trolls” – who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions – has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system.
Their business plan is simple: trolls (intellectual property lawyers use less evocative terms like “non-practicing entities” and “patent-assertion entities”) make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement.
Randall R. Rader, Colleen V. Chien and David Hricik, Make Patent Trolls Pay in Court , N.Y. Times, June 4, 2013. What empirical data supports this claim? Has new product development really been slowed? Have consumer costs really increased? And is our judicial system really now clogged by NPE litigation, rather than the cell-phone wars?
A patent is a proprietary right granted by the Federal government to an inventor who files a patent application with the United States Patent Office. There are three types of patents available in the United States: (1) a utility patent, which covers the functional aspects of products and processes; (2) a design patent, which covers the ornamental design of useful objects; and (3) a plant patent, which covers a new variety of living plant. Each type of patent confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or importing the invention into the United States.
It is important to note, however, that patents do not protect ideas, but rather protect inventions and methods that exhibit patentable subject matter. In other words, a patent can only protect something that is considered patent eligible. Generally speaking, in the United States the view of what is patent eligible is quite broad. Machines, compounds and processes are all patent eligible. Even living organisms that have been genetically engineered in a laboratory are patent eligible (see Diamond v. Chakrabarty). Business methods are also patent eligible in the United States (see Bilski v. Kappos; Patenting Business Methods in the U.S.; and Business Methods: Concrete and Tangible Description is a Must). Software is likewise patent eligible (see Ultramercial, LLC v.Hulu, LLCand Software Patents). Even modified DNA is patent eligible (see DNA patenting). Thus, it is typically more enlightening to discuss what is not patent eligible: laws of nature, abstract ideas, naturally occurring phenomena, so-called naked business methods (i.e., not tethered to any kind of machine or apparatus), inventions only capable of an illegal purpose and atomic weapons. Chances are that whatever you have can be characterized so that patent eligibility is not a significant impediment to receiving a patent.