LinkedIn

View James Drake's profile on LinkedIn

Thursday, September 16, 2010

How to Read a Patent

I think that this is a great primer for the general public.  Focuses you in on the truly important part of the patent - the claims!  From the post:


Step 3: Skip the abstract

In other fields, the abstract is your best friend: a short, direct summary of the major points of a paper.  Patent abstracts are at best meandering and hard to read, and at worst deliberately misleading (so you think you’re in the clear, do whatever you planned to do, and then get sued anyway because the abstract has no bearing on the enforceability of the patent).

Thursday, September 2, 2010

Two IP Trolls Have A Dialogue



“There’s four of ‘em, see?  Like the Horsemen of the Apocalypse, right?  Patent, Copyright, Trademark and Trade Secret.  And they’re intangible.  Can’t touch ‘em.  Can’t even tell where one ends and the other begins.  Or where their boundaries are sometimes.  And that’s a problem, ‘cause if you cross into their turf, they’ll end you, man.”

“You mean like that RIAA thing?”

“Damn straight.  MPAA too.  They have lots of freelancers workin’ for ‘em.  Those two run with Copyright’s crew.  Now Patent and Trademark, they got themselves a headquarters that both of ‘em use.  But Copyright has his own place.  Doesn’t bother with Examiners, either.  Just registers everything that comes in and catalogs it.  I think his underboss National Archive keeps it all somewhere.  And he’ll come after you.  Doesn’t care about what’s in it.  He just eyeballs what you’re doin’ and says it’s a copy o’ somethin’ in his register and shuts you down.  And that’s for every single copy there is.  Adds up and pretty soon you’re payin’ him more than the original was worth.”

“Come on, now, that ain’t possible.  How you gonna know if you copied somethin’ or just came close?”

“He’s got all the judges in his pocket, see?  They look at it and say “Eh, it’s substantially similar, close enough.”  And then they drop the punishment.”

“Don’t start me on trade secret, neither.  That’s a scary spook right there.  Never tells nobody nothin’.  But if you try tellin’ somebody else after you told him you wouldn’t, he’ll cut you.  Goes state by state, too, so’s you can’t never know how he’s gonne come at ya.”

“Sounds like you never see him comin’!  Best bet is probably to zip your lip and not push it.  But what about the major syndicates?  Don’t they got turf boundaries and whatnot?  They’re too big to jus’ go takin’ out guys right and left with no reason right?”

“Now the two big dogs you’re talkin’ about are Patent and Trademark.  Yeah, Patent posts everything like an OG (Official Gazette) every Tuesday.  He expects you to read it all and know it too.  You mess up and cross one of the “claims” he sets out and he’ll get you for triple the normal penalty.  In his younger days he used to just think stuff up.  “Flash of Genius” he called it, but he’s tightened up his standards, ‘specially after that big Bilski fight.  He works both sides of the street, too.  He can’t buy a judge he’ll go to the ITC and stonewall foreign gangs from comin’ in, even if they didn’t cross the claim here.  He’s got a syndicate, worldwide, the PCT.  He still plays by his own rules, though.  Gives everybody a one year grace period to get “protection”.  And once you are in with the PCT, they all gotta protect you, long as you pay “issue fees” and “maintenance fees”.  Pretty standard protection racket, but they’re mostly civilized and you gotta pretty good idea if you cross the line with him.”

“I heard about that Trademark, man.  He’s tryin’ to expand his territory, goin’ after sounds, colors, maybe even smells!”

“Yeah, he kinda lost it after Madrid.  Started thinkin’ every slogan, stylized initial or anything else that showed where somethin’ came from was his.  Even started movin’ in on Patent’s little cousin, Design.  He’s not as predictable as Patent, either.  He even thinks that somebody else would mistake what you’re doin’ for one of his registered “marks” (Calls it “likelihood of confusion”), that’s all it takes.  He comes after you hard.  Makes you destroy everything with your “mark” on it and start all over.  Got an underboss named trade dress who’s really crazy.  Doesn’t register “marks” or anythin’.  ‘Long as it’s “instantaneously identifiable in the mind of the purchaser”, he’ll come lookin’ for ya.”

“Sounds like I need to be real careful ‘bout crossin’ any of those bosses.  I’m gonna see one o’ them IP private eyes to keep me straight.  Right now, I gotta go get my girl a new orchid.  Guy behind the florist says they’re unique hybrids – no one else has anything like ‘em.”

“Hey wait, I didn’t tell you about Patent’s crazy cousin, Plant!”

Wednesday, September 1, 2010

Patent Marking - Next Target for Trolls?

Yesterday's decision by the CAFC effectively means that the penalty for false marking has evolved from $500 per product to $500 per individual piece!  Will be curious to see whether the Supreme Court takes this one on.  From the Wall Street Journal's Law Blog:

The ruling could pave the way for hundreds of similar suits against major companies to move forward. A separate ruling by the Federal Circuit in December raised the stakes in such cases, potentially exposing product makers to huge liabilities.