According to Brian Morgan, a senior research analysist at Euromonitor International, “Red Bull is going after high-profile bars and trying to make examples out of them. Their approach is to vigorously defend their brand.” In my personal experience this is not surprising in the least becasue this is a typical ploy.  You cannot sue everyone that infringes your property rights, but if you pick and choose wisely you can achieve maximum deterence.  The tactic is not to go after the little guy, but to go after names that people recognize in an effort to deter others.  So if high-profile bars are being sued the hope would be that lesser known establishments will cease the activity.

According to Chad Peffer, Vice President of Sales for Red Bull North America, the company only uses legal action as a last resort, “when it is clear a bar or restaurant cannot effectively adhere to the law.”

Suits have also been brought by Red Bull against Dicey Riley’s in Ft. Lauderdale, which was settled for $75,000; the Roxy Night Club in Orlando, which settled for an undisclosed amount; and the Tavern in Houston, which settled for $150,000.

While some may see Red Bull’s actions as unnecessary, if you have a trademark you need to enforce it.  If you sit by and watch others infringe upon or otherwise damage or tarnish your brand what you are doing is exceptionally dangerous.  Not only is your identiy suffering, it is possible that your brand may cease to exist.  Once a brand is considered to be a generic description trademark protection ceases.  So if Red Bull were to sit by and let others use its brand in a way that is synonymous with all other energy drinks then there would soon be nothing left to protect because the trademark would lose its meaning and value, and as a result the rights associated with the trademark would become nonexistent.

Garments having inside out appearance
US Patent No. 7,350,242
Issued April 1, 2008

The issuance of this patent on April Fools Day shows that someone at the Patent Office has a sense of humor.  This patent also reminds me of one of my all-time favorite obscure patents - Disposable boxer shorts - which was patented also on April Fools Day, just 5 years earlier.  

In any event, what we have here is not at all unique.  This particular invention is simply a garment having an inside out appearance.  How in the name of all that is right and proper could something like this be patented?  I have absolutely no idea.

We can all sit here and poke fun at this patent, pointing out the obvious problems, such as the fact that clothing that is turned inside out is not really new or unique.  In fact I would venture to say that during the course of a week we all have at least one article of clothing that is inside out in our hamper or laundry basket.  But poking such fun, which mildly entertaining, is not really enlightening. 

Just over one  year ago the United States Supreme Court issued a decision in the already famous (or perhaps it is better to say infamous) matter of KSR v. Teleflex.  In that case the Supreme Court ostensibly made it more difficult to obtain a patent.  The US Supreme Court decided that the well established and functional bright line rule for obviousness was to rigid.  No longer must there be a teaching, motiviation or suggestion to render an invention unpatentable for obviousness reasons.  Now we go case by case and determine for every invention whether it would be within the common sense knowledge base of someone of skill in the art. 

The real problem with the Supreme Court test is the very real truth that what is considered to be common sense to one may well not be considered to be common sense to another.  The common sense test provides no guidance and give the decision-maker far to much latitude to do whatever they think is proper.  It creates a situation where everyone can have an opinion and everyone should be able to be right, at least in theory.  But how could anyone on any level believe that inside out clothing is anything but obvious?  I don’t even think it is anything new.  I have seen gym shirts purposely sewn so that they appear to be inside out, so inside out clothing is nothing unique in and of itself.  So how can something that is already known to exist, and something that we all create when we throw clothes into our laundry baskets patentable? 

The short answer is that something like this should not be patentable and it is a crying shame that our Patent Office is wasting time on such inventions in the first place while there is an ever growing backlog of cases and it takes at least two years to even have an examiner take up your application.  Something is seriously wrong.  It is this type of nonsense that allows invention submission companies to be able to say with a straight face that everything can be patented.  Yes, these scam artists prey on the unsuspecting but it is our Patent Office that enables and perpetuates the scam because they continue to issue patents on things like clothing items that are turned inside out.

Before you fall prey to an invention scam or rightly convince yourself that any invention can be awarded a patent you need to ask yourself what you want to accomplish by obtaining a patent and whether the protection that is likely to be obtained is worth the time, money and energy to obtain an issued patents.  Sometimes the answer will be yes, for a variety of legitimate reasons, but sometimes the answer will be no.  Whatever you do, before you waste a lot of time and money trying to patent your invention get a patent search done and talk to a patent professional about what you can reasonably expect to obtain.

Good luck inventing!

Mr. Malek, an attorney with the firm Zies, Widerman, Sutch and Malek, PL, will show how to protect ideas, the patent process, and go over the fine points of licensing terms and agreements.

“Companies are looking for new product ideas to stay competitive. The trick for an inventor who wants to license their idea, is knowing the proper process to approach companies and negotiate a deal,” Yubas says.

This workshop will take place on Saturday, May 17, 2008 in Tampa, Florida. There will be a morning and afternoon workshop.

Seating is limited. To register, or for more information, please visit:
http://www.mattyubas.com/seminar/invention-workshop.html

Details
Title: Live Licensing Workshop
Place: Tampa, Florida
Date: May 17, 2008
Fee: $79 before April 30, $129 before May 17, $159 at the door.

Contact Information
Matt Yubas, (858) 233-9639
Source: Product Coach
Web site: http://www.product-coach.com/

This year’s Special 301 Report places forty-six (46) countries on the Priority Watch List, Watch List, or the Section 306 monitoring list.  There are nine (9) countries on this year’s Priority Watch List: China, Russia, Argentina, Chile, India, Israel, Pakistan, Thailand, and Venezuela. Countries on the Priority Watch List do not provide an adequate level of IPR protection or enforcement, or market access for persons relying on intellectual property protection, in absolute terms and/or relative to a range of factors such as their level of development. Priority Watch List countries will be the subject of particularly intense engagement through bilateral discussion during the coming year.

Thirty-six (36) trading partners are on the lower level Watch List, meriting bilateral attention to address IPR problems: Algeria, Belarus, Bolivia, Brazil, Canada, Colombia, Costa Rica, Czech Republic, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Hungary, Indonesia, Italy, Jamaica, Kuwait, Lebanon, Malaysia, Mexico, Norway, Peru, Philippines, Poland, Republic of Korea, Romania, Saudi Arabia, Spain, Taiwan, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, and Vietnam.

The Administration will conduct Out-of-Cycle Reviews for Taiwan and Israel to assess progress on specific IPR issues.

Canada has taken some significant steps in the past year and, given the importance of the outstanding issues and maturity of its economy, we look forward to additional action in the coming months on the IP reforms identified as key priorities by the Government of Canada.

Paraguay will continue to be subject to Section 306 monitoring under a bilateral Memorandum of Understanding that establishes objectives and actions for addressing IPR concerns in that country.

The implementation of Free Trade Agreements (FTA) negotiated with the United States constitutes an important element in IPR improvements. FTA partner countries have undertaken important improvements in IPR legal frameworks in keeping with the obligations reflected in the FTAs. Our most recent FTAs also reflect these high standards and we welcome the commitments made to improve intellectual property protection and enforcement by future FTA trading partners, including Colombia, Panama and Korea.

On October 23, 2007, United States Trade Representative Susan Schwab announced that the U.S. Government will seek to negotiate an Anti-Counterfeiting Trade Agreement (ACTA). This is a new and dynamic effort to combat the challenges of counterfeiting and piracy today. The ACTA is envisioned as a leadership effort among trading partners that will raise the international standard for IPR enforcement.

Despite some encouraging developments, the detailed country discussions in the Special 301 Report make clear that numerous IPR problems persist around the world. Trade in counterfeit pharmaceuticals continues to be a particularly grave concern in light of the risks to human health and safety, and the United States continues to be actively engaged in addressing this serious problem. The United States will also remain focused on combating large-scale piracy of optical media and the widespread counterfeiting of trademark-protected consumer and industrial goods.

“The Special 301 Report spotlights one of the central challenges facing the global economy,” said Ambassador Susan C. Schwab. “Pirates and counterfeiters don’t just steal ideas; they steal jobs, and too often they threaten our health and safety. The Administration has been committed to stepping up the fight against IPR infringers who seek to profit from American artists, inventors, and entrepreneurs.”

As the United States confronts international piracy, counterfeiting, and other forms of IPR theft, the Special 301 Report constitutes a critical policy tool for focusing on urgent problems including the growing problem of Internet piracy and the counterfeiting of pharmaceuticals and other products that threaten the health and safety of consumers around the world. The Report provides a basis for constructive engagement with U.S. trading partners in order to address these challenges, particularly in key countries such as China and Russia.

“We continue to work with our Chinese and Russian colleagues to ensure that they deliver on their commitments to improve intellectual property protection and enforcement,” said Schwab.

“Our bilateral engagement with China, Russia and other trading partners complement our efforts to enforce our rights through the WTO. The Administration will continue to defend vigorously American innovation,” stated Schwab. “U.S. leadership remains critical to improving the global IPR climate.”

Continuing Concerns in China and Russia

Again this year, USTR’s Special 301 Report highlights serious IPR concerns with respect to China and Russia, in spite of some evidence of improvement in both countries.

China

USTR announced that it will once again retain China on the Priority Watch List and continue monitoring China under Section 306 of the 1974 Trade Act, thus maintaining pressure on China to improve its IPR situation. While the United States continues to seek cooperative channels to work with China to strengthen that country’s IPR regime, high levels of copyright piracy and trademark counterfeiting remain serious concerns. At the same time, the United States is also using the WTO dispute settlement process to address a number of specific deficiencies in China’s IPR regime.

Russia

The Administration also continues to work for improvements to the intellectual property regime in Russia. Although Russia has made some progress - for example, in moving optical disc factories off of government-controlled sites and raiding unlicensed factories - large-scale production and distribution of IP-infringing optical media and Internet piracy remain significant problems that require more enforcement action. The United States will continue to monitor to ensure that Russia moves to implement a variety of legal and law enforcement improvements to which it committed as part of a bilateral agreement with the United States on Russia’s accession to the WTO. Implementation of these commitments remains essential to completing the final multilateral negotiations on the overall accession package.

Improvements Noted for Several Trading Partners

In addition to flagging prominent intellectual property concerns of U.S. trade policy, the Special 301 Report also provides an opportunity to recognize trading partners whose efforts to improve intellectual property protection and enforcement are delivering results both for home-grown innovators in those countries and for U.S. right holders. Egypt, Lebanon, Turkey, and Ukraine are being moved to the Watch List (from Priority Watch List), reflecting improvements in each country’s IPR regime. Two other trading partners - Belize and Lithuania - are being removed from the Special 301 Report altogether.

I am frequently asked why someone would describe their inventin to the point where others could simply copy.  The simple reason is that the US patent laws require such a description.  The more complete answer is that such a description is required because in order for the government to grant a patent Congress has said that you must describe your invention so that others will be able to benefit from it, learn from it and advance it moving forward.  The only way to do this is by describing your invention with great care and detail.

The crux of the description requirement, which is embodied in 35 U.S.C. § 112, is the enablement requirement and the best mode requirement. Both the enablement and best mode requirements can be found in the first paragraph of ‘ 112, which states:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

The enablement requirement requires the inventor to describe his or her invention in a manner that would allow others in the industry to make and use the invention. “Enablement looks to placing the subject matter of the claims generally in the possession of the public.”

The best mode requirement requires the inventor to disclose his or her preferred way of carrying out the invention at the time the patent application is filed. There is no requirement that the inventors preferred embodiment be updated as the patent application works its way through the PTO. Best mode looks to whether specific instrumentalities and techniques have been developed by the inventor and are known to him at the time of filing as the best way of carrying out the invention.

Thus, the enablement requirement looks to the objective knowledge of one of ordinary skill in the art, while the subjective and factual best mode inquiry looks to the inventor’s state of the mind.  Together both work to require the inventor to describe the invention and all preferences with the greatest amount of detail that can be provided.  Simply said, if it is not described in your application then it is not considered a part of your invention insofar as the patent laws are required.

For more information about patent applications see:

Provisional Patent Applications

No such thing as a “Provisional Patent”

Nonprovisionval Utility Patent Applications

Good luck with your inventions!

A provisional patent application allows for filing without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. The beauty of the provisional patent application is that it locks in your application date and provides you with “patent pending” status for much less cost than is associated with a non-provisional patent application. You then have 12 months to decide whether it makes sense to move forward with the expense of filing a non-provisional application.

It is essential to know that the benefit a provisional provides is only with respect to that which is described in the application. A carelessly prepared provisional is a complete waste of time and money. Yes, you can legally say you have a patent pending even with a careless or incomplete provisional patent application, but no benefit will be achieved if and when you ultimately file a non-provisional patent application.

It is also important to realize that a provisional patent will never mature into an issued patent, nor does a provisional patent protect your invention from copying by others. Thus, it is incorrect to think of a provisional patent application as creating some type of provisional patent rights.  There is no such thing as a provisional patent.  You can file a provisional patent application as a low cost first step toward achieving a patent, but the Patent Office will never issue a “provisional patent.”  You will always need to file a non-provisional patent application in order to obtain an issued patent. If your provisional discloses your invention completely and clearly the filing date of your subsequent non-provisional patent application will be considered to be the filing date of the original provisional patent application. If you file a sparse, incomplete or unclear provisional application the filing date of a subsequent non-provisional patent application will NOT relate back to your provisional patent filing date. Therefore, it is frequently said that a provisional patent is good so long as it discloses the invention with the same detail and specificity that is required of a non-provisional patent application.

For more information about provisional patent applications, their benefits and limitations see:

http://www.uspto.gov/web/offices/pac/provapp.htm

Rather than pay $100 or less on the Internet to complete a form that allegedly will create a provisional patent application I recommend you give Invent + Patent Lite™ a try.  It is free, and I am the one who created it.  It will create a solid first draft of a provisional patent application.  If you use this you really should have it reviewed by a patent attorney or patent agent to make sure that the disclosure is sufficient to provide support for a subsequent non-provisional application.  You do not have to use my firm to review the application, but if you are interested we will review the draft and provide feedback and suggestions for $300. 

Good luck inventing!

A trade secret will be protected from misappropriation from exploitation (through state law) by those who either obtain access through improper means or who breach a promise to keep the information confidential. Trade secret misappropriation is really a type of unfair competition. Remedies for infringement of a trade secret include damages, profits, reasonable royalties, and an injunction. Some statutes also provide for enhanced damages and attorneys fees in certain circumstances.

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office.  There are three very different kinds of patent in the United States: (1) a utility patent, which covers the functional aspects of products and processes; (2) a design patent, which covers only 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 only tangible or identifiable structures, methods and uses.

While trade secrets last until the information is no longer secret, which can be 1 day or decades (as is the case with the Coca-Cola formula), the duration of patent protection in the United States is dependent upon the type of patent that is acquired, whether additional fees are paid to keep the patent current, and whether any time is added to the exclusive period due to governmental delay.  Typically when the generic term “patent” is used most are referring to a utility patent.  Generally speaking utility patent protection last for 20 years from the date on which the application for the patent was filed in the United States.

It is important to understand how patent and trade secret law overlap. It is worth noting that many people erroneously believe that when an inventor applies for a patent all trade secrets are lost. This is simply not true. Anyone who tells you this is either over simplifying the process or does not understand patent law. US patent law requires an individual to disclose the best way to make and use the invention, which is referred to as the “best mode” requirement. Because the invention is defined by the claims, you must disclose the best way to make the invention you claimed, not necessarily the best way to make what you invented. The critical distinction comes into play as a result of the difference in what may be claimed and what was invented. Additionally, the requirement that the best way be disclosed is satisfied by disclosing the preferred embodiment at the time the application is filed. In other words if you learn more about your invention after you file the patent application you do not need to disclose that information. This is significant because much of the invention can frequently be retained as a trade secret, if there is appropriate claiming and preservation of trade secret information. Because a trade secret exists only so long as it remains a secret, the inventor must be careful to take particular precautions to preserve the integrity and secrecy of all information related to the invention and the invention process.

So when you are inventing you should always realize that both patent and trade secret assets can be particularly valuable.  Likewise, if you are ever luck enough to be able to license your invention you want to license both the patent and associated trade secrets.

Head mounted letter “M” [ PDF ]
US Patent No.6,834,453
Issued December 28, 2004 

Searching for obscure patents can sometimes seem like looking for a needle in a haystack. Certainly, there are no shortage of patents that get issued on a weekly basis that should never have seen the light of day. Unfortunately, invalid patents are increasingly becoming a way of life. Occasionally, however, a holy grail of obscurity is stumbled across. Finding and reading such wacky patents makes the journey through the hundreds of thousands of patents issued yearly all worth while. This particular patent is one of those rare finds. Spotting a patent like this is both fun, entertaining and tremendously sad. How in the name of all that is right in the world could the United States Patent Office issue a patent on a modified letter “M”? Giving the USPTO the benefit of the doubt, this letter “M” is worn on the head of the user. To quote Charlie Brown… “GOOD GRIEF.”

The Background of the Invention explains:

It is an object of the present invention to provide a display that is adapted to be mounted onto the head of a fan and which is provided with the shape of a letter “M” that has some association with a particular team. For example, the Seattle Mariners baseball team is commonly referred to as the “M’s.” It is an object of the invention to provide a display in the shape of a “M” that is adapted to be self-secured to the head of a fan, so that, for example, the fan can wear it to a game or elsewhere.

For those keeping score, there are 25 derivative inventions easily identifiable as an off-shoot of this invention. Of course, even the Patent Office may find other single letter head mounted displays obvious, but then again who knows! There would seem to be several that would not be obvious. Can you imagine trying to keep a “V” on your head in the same manner as this “M”? Even if all of the other 25 single letters would be obvious just imagine the patent portfolio that could be created with the addition of multiple letters.

The Summary of the Invention explains:

The letter “M” display of the present invention is basically characterized by a foam body having the shape of a letter “M” and including a pair of laterally spaced apart side portions and an interconnecting portion. The interconnecting portion forms a substantially “V” shaped central upper portion of the letter “M”. The side portions depend from the interconnecting portion and define a space between them, below the interconnecting portion. The side portions of the foam body also form the side parts of the letter “M”.

According to an aspect of the invention, the side portions of the foam body include confronting, temple engaging, inside surfaces, spaced apart a distance less than the temple-to-temple width of a person’s head. The foam body is constructed from a springable foam that stores spring energy when bent and allows the side portions to be sprung apart, and when released moved back towards each other. The side portions of the foam body can be sprung apart so as to enable a person to place his/her head between the side portions. Then, the side portions can be released so that they will spring back towards their static positions and clamp onto the person’s head. In this manner, the letter “M” display is secured to the person’s head.

Preferably also, the foam body is compressable and when compressed will store spring energy. When the letter “M” display is clamped onto a person’s head, there will be some compressing of the side portions of the foam body. This compression will store further spring energy that will act together with the bending spring energy to clamp the display onto the person’s head. In preferred form, the foam body is constructed from a flexible polyurethane foam. The side portions of the foam body are squared members and the inside surfaces of the side portions are substantially planar and parallel to each other.

Accordingly to a further aspect of the invention, the foam body is provided with at least one color that is a color associated with a particular sports team. For example, the color blue is a color that is associated with the Seattle Mariners. In preferred form, the foam body includes a border outlining the letter “M” that is a first color that is associated with a particular sports team. Within the border, the foam body is covered with a second color that is associated with the same team. For example, the first color may be the color gold and a second may be the color blue. Both of these colors are associated with the Seattle Mariners.

This process is one that I developed as a result of my teaching activities over the years.  I had to come up with a way to teach law students how to draft patent applications.  It was adapted to use by inventors and has been tremendously successful, helping thousands of inventors create provisional patent applications. 

For more information see: Free Provisional Patent Applications

Gene Quinn
Patent Attorney & Founder of IPWatchdog.com
Partner, White + Quinn, PC

So what can be said with confidence?  Here goes…

Works Originally Created on or after January 1, 1978

A work that is created on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Works Originally Created before January 1, 1978, But Not Published or Registered by That Date

These works have been automatically brought under the current statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms will apply to them as well. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

Works Originally Created and Published or Registered before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last year of the first term, which is the 28th year of protection, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

Even more confusing, but worth knowing

Public Law 102-307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. Public Law 102-307 makes renewal registration optional. Thus, filing for renewal registration is no longer required in order to extend the original 28-year copyright term to the full 95 years. However, some benefits accrue from making a renewal registration during the 28th year of the original term.

For more information see Copyright Term and the Public Domain in the United States.