WWL>Topics>>11-5-13 3:10pm Angela: on intellectual property

11-5-13 3:10pm Angela: on intellectual property

Nov 5, 2013|

Angela talks with patent attorneys Mary Ellen Roy and David Patron, both of Phelps Dunbar, about what to do to protect your "intellectual property."

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Automatically Generated Transcript (may not be 100% accurate)

Well this is a subject I've wanted to do since day one how many times have you look at the product or even an idea and said I could've done that. Actually how many times have you thought of something and thought how this could make me millions. You're not alone. Many have come up with something that started as a thought and progressed to a product. But what is the process that takes it from that thought to reality. How do you protect your million dollar idea and then carry it forward. Well that's what we're going to find out today from two experts in the field. Mary Ellen Roy and David put Tron from Phelps -- -- our law firm they are delighted to have both of you here. And I know that people are gonna wanna know about this is -- always saying and and hearing -- came that close and and somebody else that the idea. So it's first of all let's talk about patents but the let's also talk about. Other kinds of intellectual property whether -- copyright two trademarks. And certainly David. You need to enlighten us about what's happening on the Internet. -- okay. So this is going to be an hour of wonderful information if I'm not asking the right questions please call end. And we would love to hear your thoughts or if you've had an experience and learn from it and wanna share that. Let me start now with patents. First -- well. What would you say a rough percentage. Would be of people who actually follow through with a ninety. I would say it's a very small percentage. And and basically to actually get up and it. -- need more than an idea you need drawings you need an actual prototype of an invention. And it. So still not many people not with this small percentage actually get a -- and that many people have ideas. And it's great to have on its head but just a follow up on what Merrill was saying it's it's really more than an idea. Needs to be an application of ideas something that you actually create. You know you need to get past just the thought in your head concept. OK so the summons us -- I'll go ahead and do prototype. And let's just take an -- give me an example of one that's who came to you and said here's a little protect. I don't and I'd rather not give examples of people who actually come cuts ought to get into the tank client privilege because defenses. People are very bomb and rightly so feel that there inventions are confidential. You know initially and sometimes what we do initially is maybe they don't have the resources to develop their own quoted I. On May be what they want this to hook up with a bigger company and invest. You know someone who will make an investment and then what they need is the type of confidentiality agreement -- we called a non disclosure agreement whereby they would. Talk to someone about the idea -- in the present with money that Britain with greater resources. Would listen and decide whether it's worth going forward or not but we're promised not to basically steal that idea okay. Let's let's talk about patents you say there are two main types of functional patents and the design patents kind of collaborate on right well -- patents are more things that do something new facets timing and things like that. Does not pat and actually I also have to be in the industrial arena. But the the shape of something something that is attractive again and -- in your bathroom for example it's unit might be the shape of the sink would be a design patent. There's also like penicillin. It's really a third type of boats at it belongs and of the functional time spent. I think -- purposes I'd mention it separately that the business method patent. That's a relatively new type of Patent and Trademark Office has been recognizing usually in the software area for the last ten years or so ago. So you can't patent and idea you have to -- the product. But rightists generally designed for process season products something that is physically and invention but you can also like Maryland said. Have methods of doing business that can be. Patented typically. He'd need to prove in order to get a patent but you have something that is new. That is useful. And that it's non obvious and that is going to be heavily scrutinized by the patent office before you get a -- non. Obvious -- that's tricky it's very tricky because. If it's something is. If something is obvious then you know it it. It's not really the new idea that and that's the point is it does have to be. A new idea but some of someone thinks that they have a new idea in the -- and Trademark Office says. No that's really just an application and new application and the very old idea and so it it doesn't count as being non obvious welcoming the people who say. Everything has already been done. Right everything bills on something else in -- there's a term of art and the patent law called prior art where you have to show how you're different from. Other other -- previous inventions and why what you do is so you creatively different that -- you deserve your own patent. So David somebody comes to you when they have an idea and even approach I've been. An in your heart you say I think that's probably been done before how do you handle that. Well you need to do a lot of research because typically an application for a pads gonna have two different aspects you're gonna have what's called the specification what is your invention do what is this method do. But then there's a second part which is the claims part. And that is where you set forth why. What you're putting forward is specifically pat double and then you'll have rights of that pass those aspects. Of adjourned tension or of your patent and that's where you need to distinguish. What your invention does from everything that came before and that's the prior art and and and show why. You brought something is new not obvious and useful. To the table which will give you patent rights which typically extend for twenty years. Plus some if you get an extension. So let's say something has been invented -- and the patent rights are over. Significantly over and then you have a variation of that. Then you can go and say here's the variation on something that is already then it has already expired. And that's legitimate. If you are putting on -- bring something ms. knew if -- just simply rehashing what has already been done -- wants a patent expires it's it's. It's open to the public it's sort of the classic example is a generic drugs yes you view you have drug companies that we'll have you know. Good twenty years where they can sell. They're drug in -- becomes generic but if you then develop. A new. A component to that you can add to that drug and you won a patent and the mix it with the drug you could have a patent over that. You know that aspect. The drugs. Drugs are good example of a a type of of pat being being that it's tangible which is like a chemical formula which you don't normally think of as a I was having a prototype you being an invention but. It's a certain formula for example in in the drug arena with generic drugs if a company that had the brand name may be comes up with a slew of variation that. Means you take it twice today instead of one today. Already taken every day instead of meal once a month or something like that it can be it's efficient could be they can get a whole new patent. But is often a fine line between is sufficiently different. OK stay with -- were talking about. Getting that patent on that wonderful idea you just Chad and making -- multimillion dollar stay with us this is Angela under the -- -- well. So once again you've got that million dollar idea how do you bring it to fruition. Mary Ellen Roy and David patrol on our special guest today they are attorneys with Phelps Dunbar and you're making things sound very simple. And I know that it's much more complex that we're talking about patents but we're gonna move on and talk a little bit later on copyrights and other things like that you've got ideas. Let's finish up the with the patent. How do you begin you register your patent and how long does that take him what do you do. Can easily take two to three years it's a very lengthy process you do need an attorney I'm not calling any attorney Bennett attorneys register with a pen and Trademark Office. And so it is it is pretty complicated electricity need drawings she need. Written specifications. And so forth. And -- -- usually a lot of give and take during that process you'll have been examining attorney that works for the federal government and the patent office that will be. Examining your application but also researching. The markets in the field to see if if you are coming up with something new and they may or reject your application or portions of the claims that your asserting and then you let them go back you need to try to convince come. That they're wrong or revise or application and these these applications can get very thick and voluminous. You know I'm reminded this was 25 years ago but Garland had done a series of stories on a man who lived in Mississippi. Who had what he believed was an energy machine perpetual motion machine. And it was so against the theory. -- a physics center. That this man fought for a decade with the with the patent office in Washington I mean literally their pictures of him standing outside the office in one way it was very emotional. Because you were sorting it was the David and Goliath and you were cheering him on. And of course you never got it done but it showed the determination that one often has to have. In the belief he believed strongly that he had created something. Have either if you had experiences where you had to be the Anderson this is not gonna work. It's gonna cost you so much money. Well the finances are an issue I -- -- all of the forms of intellectual property securing a patent is going to be. One of the most expensive as well as the most time consuming too in order to your rights. Point you brought up about the a perpetual machine in the laws of nature that's one of the things were sometimes just tell your clients that you cannot get a patent. On out on a formula low oral law of nature -- the example like to -- is. Einstein's equals MC squared you can't. He can get a patent on that you may be able to get a patent on a nuclear power plant that's based upon that mathematical work. Scientific formula picture you cannot -- You can get a corner on the market of the laws of nature. I I would say more often than not we we have to tell people that com. The opera can help them get a patent but it probably is not going to be financially feasible for them. I mean we don't wanna leave someone down the primrose path where they spent a lot of time and money in their own. You know we emotional investment in it it's not gonna result in a patent at the end. Okay let's talk about. Patten writes. So once you gotta pat. What does it mean. Well it means that you have the right to create that invention to actually manufacture it to use it. To sell it. Offered for sale on and on the other hand it means that other people do not have the right to do those things they can't use -- manufactured Purcell. And so you have that protection even though some absolutely do that. They infringe on your patent. -- the whole process of fighting that. Now -- -- to talk more about this that and infringement suits are very big area of litigation these days not. And you have so called on patent trolls -- people who who come up with patents that may be aren't being. Used very much and they they by the very. On cheaply and then they instigate large litigation against people who are supposedly infringing those patents. Yes that's happening more and more and and that there's been greater scrutiny. Of that phenomenon -- both with in the courts and patent office because. There's been very high influx of patent applications and it's been very difficult for the patent office to keep up with that and there's. A belief that there's so many patents out there right now that really aren't valid and senators the so called patent trolls and I'm not trying to make a derogatory but is -- is someone that has a patent that's not using it but simply looking for an opportunity. To find someone who's a French and so they can file suit and get some type of settlement out of it in this this is very big litigation across the United States. You know you hear these things. Anyway have very good point and something we need to to think about let's move on to copy. What can be copied it. Basically a copyright again you can't copyright simply an idea it has to be. What's called an expression of an idea such as -- books such as -- points which is a piece of music. All of those kinds of things are copyright -- or something -- not even think about but. Plush toy is copyright -- for example -- -- with it's got to be. Found some type of work of art a work of expression. And so what is the process for that because I know people who know I've written a song dot com. Well in contrast to patents copyright registration is actually quite simple you send a copy of what you've done for the Copyright Office. It costs about 35 dollars. And you can usually do it Europe yourself -- in Hammond attorney to do it because -- there are certain nuances about it. Com and you don't even have to register that you can just bomb publish it and input -- the letter C now with the circle around it with me with your name and the date. -- companies named in the date. And you have a copyright. And if anybody should be is that what happens. You can sue them for infringement but they have the -- and that's the key is that if they come up up up but the the expression separately and they never saw your copyrighted work in the just so happened to -- going in the win without looking at the original then technically that's not a violation its chances are they did copy it -- Maryland brought up a good point is that. You have copyrights the right. It's an issue reduce an expression to a tangible medium you do not have to file anything you actually have rights and work is if you. -- now write the book or sculpt the sculpture. It's yours now. The certain procedures that you wanna do if if you went off foul off a lawsuit for copyright infringement you do need to register your copyright with the Copyright Office. But you you have rights in your work is seen as you. Put the pen to paper. Let's go again -- can be copied books articles photographs. Music. From it works but it might plays placed upon you musicals in a minute appears on Broadway. You know the script itself the music itself all there. That the total totality of the plate -- choreography you choreography. Right on the stage design and setting all of that's copyright Opel Wright. I would never -- choreography but of course it's an art form and you -- Okay what can't. Copyright. I'm certain things that are on spy extemporaneous spontaneous like like it just a jazz jam session for example that's not actually recorded once -- recorded the recording has copyright -- not actual just. Kind of made it music itself for a a comedy improvisation. You know that's not copyrighted -- and -- this -- written down in some way. And and again an idea despite itself can't be copyrighted it has to be Afghan at least. You know an outline copyright outline -- Pittsburgh now for example. What about names. Names are not copyrighted book titles are not copyright ample. Also movie titles and copyright ovals so you may see titled the book the title of songs that you may see the -- -- used. You know I totally different artists on that that is not copyright -- it's too short and also it it can't say the name of the company for example. You can protect that under trademark -- and we'll get to that I think later in the broadcast but strictly speaking it's not copy. That is very -- so. Is this under that you know that the battle of the food yet. Is that under copyright. That is under trademark trademark OK maybe we ought to. Wait a second please stay with us were gonna continue all you who -- fans and others talking about your rights. And what we can learn if we have an idea right after this I'm Angela on WL. We're talking about patents and trademarks and just your ideas and how you can protect them and what you can't protect. Mary Ellen Roy and David Tron our special guest today they are without the law firm of Phelps Dunbar. And we were talking a little bit about copyright and we got into trademark. Before we wrap up copyright. Look let's sort of talk about you can register. Your copyright. But there's a disadvantage to that is well. There early advantages really to registering yet on that the only disadvantage is if you have. A lot of something imminent that it it could be expensive -- it's 35 dollars for ev everything that you would do but -- can be it can be expensive to do but they're no real disadvantages to it. OK let's let's go on to trademarks for small kind of define for me with that it. A trademark is like the cup the name of Martha the company goes by McDonald's Starbucks the golden arches. All that that's typically what a trademark is it could be. Trade dress are are like the shape of a Coke bottle on the shape of the shampoo bottle and also as a form of trademark. We were talking a little earlier about the -- thing I think a lot people know that but their other examples. Such chance that's another classic example and morons would be a perilous and there are now across the -- that. That crawfish is a way that -- -- -- its trees -- goods so that when someone sees that on the short list and that's publisher. I like that -- at the hardball -- sure. So a trademark is just a way that you accompany your business or person can identify. They're goods or services you can have service marks as well but you can register. With the Patent and Trademark Office if you want to. So its trademarks and trade names. That's right -- trade names which is like Maryland says you can have the name of a company McDonald's and you can. Red -- that for instance with Louisiana secretary of state it doesn't have to be the formal name of your business you get to be. You know some. Very unattractive name for your business you can and you can say doing business is. Whatever he wanted to be. To sort of -- Underline to what the name of your businesses. And it differences for example Procter & Gamble is a trade name. But it has been in coming up that is on the line has tied the tide innocent you know that -- the trademark for the particular product. OK we have a caller on -- from Covington. Yes I totally. Well -- just very interested in which you talked about because that is -- picking up registered. Copyright. That here schedule. And also. Three patents. Last month on the sixteen. And decided. That it secretly. Help finance my mom's living which is. You know something I didn't need to do but it is that the and and I came up with a grill which most people as the George Foreman grow. And for instance prototypes. Alone was over 101000 dollars. And have a great mentor. -- as. Did the sure and dealer. And he. And reduce reduces patent attorney. That that and many in the world and I think it was -- This gentleman from Washington. Baptist. A lot expenses. -- my -- allowance. And then believe that the patent office said they lost. And it took years and we get you know. Couldn't. Find it. And that was given -- And -- you know. The crews on the market. Not only budget in George but by -- will change and. So -- did you have the patent before he did or he OS and it. And so how does that work. That's where I was gonna ask them in -- it was a cost me like a million dollars to go after. Yes and that that's the thing I think which most nervous. I have to others. And I would just more whoever's listening. Navigate your right here like use but it was speaking before. Because I had this company economy and and they offered me at that -- I was. But -- high school. 30000 a year which is huge money may and education paid for. -- royalty. And an -- in when I went back to see him. They gave me. They said no you know uninterested in the group. On them instead ask the fifty foot -- goes screening. -- to tense up replacements which. Why -- like you know guts and drew it out form. And when it said it -- about my opportunity to sit and other demise. Oh my gosh. Yeah -- know you could write a book. And write the book only to come on this case. Well a lot of lessons learned I need to be copyrighted. But just cars and you know all my friends because -- that ordeal that they did a story on me. Thomas Edison the so. And -- also -- I was in Sunday journal. And you know showing it. Working -- -- state. And then. You know. And I literally ended up with nothing. But you know I have one right now which is. Six children's lives. And I'm just you know. A major part of me wants to just say OK so what this economic time it's gonna do this. Are you saying you already have a patent on it and it's. Now. No because I think there's honestly and I think this people did that actually aren't by. Big corporations. To travel like look what's. Coming out with a patent. And they can do background search and see that. The public at a college kids afford. But what are something right now if you're gonna applauded the patent office. That they can't let -- -- can I mean how could a company. All what can say is my pet examiner. We've. Resigned about eight months after -- cut -- issue. On on the grill. You'll have a comment yeah I mean. This this does happen a bit and there's actually. Mechanism within the patent office if there are. Nearly simultaneously filed applications that deal with the same type of invention. British procedures where they will go by and try to to ferret that out and I don't know anything about this gentleman's experience but it. What I would but I would go and say is this something he -- be careful. -- disclosing any invention you have until you that you actually get a patent application on file but another. Important point and inspect what Mary Allen said I'm pretty early on -- sometimes we get them counsel clients in terms of keeping their information confidential because she may not wanna go the patent -- there's a there's another form of intellectual property which is called trade secrets where. You never make that information public but she can have certain rights. The last forever as long as you keep it secret and -- gives value to your business and that is a different way to go would be a little bit too difficult to do that with a Foreman grill. But. For instance Coca-Cola has a formula. On on this secret recipe for further cola. That's something that they could have patented that. They would only have that for twenty years they've now had more than a century of value from that company. Because they treat as a trade secret and that's of wholly different way to protect. Your so called invention in this case would be a formula but but these -- that trade secret could work on an actual product. Not just a recipe Horry. -- trade trinkets are very broad it could be on how you do business and it's. Not up as a high burden to prove a trade secret as -- as something that you would. Make public and patent and exclude anyone from using. It could be a formula could be you customer list. Something like that but but also yet if it's something that you sell in the marketplace and it can't be Tracy because everyone sees it. It has to be something that basically only stays with the end of the four walls of your company. And something like you know that's very valuable like you know the formula for Coca-Cola. You have to have a lot of systems and up to be sure that it stays secret okay. Well that John Carter it was it was very Smart meant because systemic had barks. And Coca-Cola bought that. That I really appreciate you calling in new -- stay with -- we're gonna continue our job. About a patents and everything else yet. Had to 201. Mechanical design. In good -- well yeah well thank. We'll be right. You know I hate or running at a time and we do still have some time but. What is important to you all for the public to know somebody who really does like this -- have an idea and one protective. Why do you think it's I mean I hate to say you know go see a lawyer for the Catholic -- promoting our services but. I do think it often is important to go see a lawyer even if it's just for email and our half hour consultation. To get some calm basic thoughts about what to do well whether your ideas copyright double or whether it's -- double whether you should be treated as a trade secret. You know it really depends on a case by case situation. And be be well advised to get advice on that. OK stay with this we're not done yet I'm Angela the system anyway.