Category: Intellectual Property

What Goes Into a Patent Application?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
What Goes Into a Patent Application? | Pat Werschulz

Many people are under the impression that drafting a patent application is just a matter of filling out forms, like any type of government application, and perhaps submitting a picture, as you do when you’re applying for a passport. Nothing could be further from the truth. In fact, preparing a patent application is a complex legal process. The United States Supreme Court has even said that drafting a patent application is the most complicated legal writing in the profession. A patent application has three main parts: the written specification, the drawings, and the claims. This is true of any type of patent applications, whether it’s for a utility application, a design application, or even (in those rare instances) a plant patent application.

Click here to read Pat Werschulz' full article...

Breitbart’s Biggest Enemy is the Truth…Including Todd Bigelow’s Copyright
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Breitbart’s Biggest Enemy is the Truth…Including Todd Bigelow’s Copyright | Mark Kaufman

A lawsuit was recently filed in the Southern District of New York that isn’t exactly fascinating for its merits, but it does speak to the perennial issue of intellectual property rights: the erroneous but popular idea, even among commercial users, that “if it’s on the internet, it’s free to use!” In Bigelow v. Breitbart News Network, LLC, photographer Todd Bigelow is suing Breitbart News over its use of one of his photographs without his permission. In addition to garden-variety copyright infringement, Bigelow also sued under the Digital Millennium Copyright Act, because Breitbart had removed the identification of the artist and its copyright from the image.

Click here to read Mark Kaufman's full article...

Copyright and Trademark: Titles, Words & Short Phrases
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .

{4:12 minutes to read} It is a truism among intellectual property lawyers that no matter how often one may encounter discussion of a “copyrighted word” or a “copyrighted phrase”—and this notion appears frequently in media—copyright law generally does not protect titles, words, slogans or phrases.[1]

Click to read Joshua Graubart's full article...

Intellectual Property: Are You Set Up For Success?
avatar


Authored by , re: Business Law, Intellectual Property, LAW RELATED ARTICLES, on .
Intellectual Property: Are You Set Up For Success? | Bettina Eckerle

One of my mantras when advising clients is to pay particular attention to their intellectual property when thinking about building value in their companies. This requires a comprehensive IP strategy that covers IP creation and protection. It is best started from the get-go, but it is never too late. You’ll need it to build and protect your IP assets to help you to monetize what you have built.

Click here to read Bettina Eckerle's full article...

No Trademark? No Problem
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
No Trademark? No Problem | Mark Kaufman

An interesting case was recently decided in the Southern District of New York called Charisma World Wide Corp v. Avon Products. It appears to be a case over intellectual property rights, but decided without relying on intellectual property law. The case was over a technical analysis as to whether the court had subject matter jurisdiction to even listen to the complaint. It hinged on the court’s analyzing whether the conduct that the plaintiff was complaining about had a substantial effect on domestic (that is, U.S.) commerce. Charisma World Wide Corp. (Charisma) is a Panamanian company that sells “renowned products” in Panama under the trademark “Charisma.” America’s own Avon, of door-to-door sales, fame, had been selling similar products in Panama, also called “Charisma.” Both products are cosmetics and, to a casual observer, seem like exactly the same thing.

Click here to read Mark Kaufman's full article...

What is Patentable? The Phenomena of Nature Exception
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
What is Patentable? The Phenomena of Nature Exception | Pat Werschulz

The answer to the question “what is patentable?” should be pretty straightforward, because the applicable law says: “a machine, a manufacturer, composition, or a process, or the improvements thereof, are patentable.” However, over the years, the courts have created very specific guidelines concerning what is or is not patentable. One exception to patentability is called the “phenomena of nature” exception. The Supreme Court discussed this exception in a 2013 case called Association for Molecular Pathology v. Myriad Genetics.

Click here to read Pat Werschulz' full article...

It Takes All Sorts of Torts, Indeed!
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
It Takes All Sorts of Torts, Indeed! | Mark Kaufman

A copyright dispute late last year forced a holiday play to go dark before the Rockefeller Center tree was ever lit. The suit centers around the play Who’s Holiday by Matthew Lombardo. No, the dispute is not over the apparent typo in the play’s name. Rather, it is that the defendant’s play is based on the character Cindy Lou Who from the beloved Dr. Seuss book The Grinch Who Stole Christmas. Whether the play is an unauthorized derivative work (from the perspective of the Dr. Seuss estate) or a parody (from the perspective of the playwright) is what the court ultimately may need to decide. Who’s Holiday is a profane, one-woman show that documents the life of Cindy Lou Who after the denouement of Grinch. It finds Cindy living in a trailer park, after having married the Grinch, whom Cindy had murdered (allegedly in self-defense), before the curtain lifts.

Click here to read Mark Kaufman's full article...

What Should an Attorney Charge to File and Prosecute a Patent Application?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
What Should an Attorney Charge to File and Prosecute a Patent Application? | Pat Werschulz

Not surprisingly, one of the first questions clients usually ask me is “how much does it cost to get a patent?” While there are some government fees that apply regardless of which attorney you choose to file and prosecute (i.e. prepare the application and shepherd it through to issuance) your patent, the attorneys fees can vary. For a utility patent on a simple invention that doesn’t involve software, high tech, or extremely complicated chemistry, a budget of $12,000-$15,000 over the period that the patent is pending is a reasonable cost. This cost covers a substantial amount of work at two stages.

Click here to read Pat Werschulz' full article...

E = Who Are You?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
E = Who Are You? | Mark Kaufman

Readers of my blog know that I’m generally in favor of enforcing copyright. If you’ve got the goods on someone and those are your rights, you should be entitled to collect for it — or at least stop it. Likewise, if you’ve been called out for infringing, the right thing to do is usually to pay the pound of flesh required of you. But how does the would-be defendant know whether paying it will actually solve the matter? A client recently received a demand letter from a licensing agency for allegedly infringing on a copyright owned by a newspaper in Europe. The notice was referring to my client’s use of, let’s say, the famous image of a French boy running with a baguette on a relatively private — and certainly a non-profitable — website. In this case the pound of flesh was only a couple hundred bucks, but I was motivated by the sense that the purported licensor was a greedy, undeserving troll until proven legitimate.

Click here to read Mark Kaufman's full article...

To Boldly Go Where No Nerds Have Gone Before…
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
To Boldly Go Where No Nerds Have Gone Before… |  Mark Kaufman

To boldly go where no nerds have gone before… In Paramount Pictures Corp. v. Axanar Productions, Inc. the U.S. District Court for Central California was presented with a case of fan fiction gone awry. A small studio called Axanar Productions set out to produce a piece of Star Trek fan fiction centered around an obscure character named Garth of Izar. It was to be a feature-length film set as a prequel to the 1973 original series. In order to finance the production, the studio hosted a crowdsourcing campaign that was successful in raising $1.1 million.

Click here to read Mark Kaufman's full article...

Tequila or Not Tequila: A New Certification Mark is Born
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Tequila or Not Tequila: A New Certification Mark is Born | Mark Kaufman

Ironically, the same week that the president of Mexico declined to meet with the president of a formerly friendly nation because of various perceived (and perhaps actual) insults, the United States Trademark Trial and Appeal Board (TTAB) granted a decision in favor of a Mexican non-profit association of distilleries. The Consejo Regulador del Tequila was granted a certification mark for the appellation ‘Tequila.’ According to the U.S. Trademark statute, a “certification mark”

means any word, name, symbol, or device, or any combination thereof to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services ….
So the TTAB determined that, despite its most unfortunate location South of the Soon to Be Very Tall Border,  the Consejo Regulador del Tequila can control the use of the word ‘Tequila’ within the United States.

Click here to read Mark Kaufman's full article...

Patent Law: Business As Usual
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Patent Law: Business As Usual | Pat Werschulz

{6 minutes to read} We have a new president. We have new members of Congress with a different distribution between the two parties. And probably before the Supreme Court sits for a new session in October, we’ll have a ninth justice. The question is: How are the changes in Washington going to affect patent law? First, a history lesson in patent law…

Click here to read Pat Werschulz' full article...

The Blurry Boundaries of Copyright
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .

{3:54 minutes to read} My practice—and accordingly this blog—focuses on copyright, or at least on what we call  “copyright” in the United States. However, “copyright” is only one segment of a broader spectrum called “intellectual property,” and—as is often the case with segments of a spectrum—the boundaries are somewhat arbitrary, and the subject matter can bleed across from one segment into the next. Just so with intellectual property. Indeed—and just to illustrate the fuzziness of even the concept of “copyright”—what we commonly describe as “copyright” subject matter in the United States encompasses segments which much of the rest of the world labels “authors’ rights” (i) and “neighboring rights” or “related rights.” Copyright in the Anglophone world begins with literary property: books and pamphlets. Over time, the realm of copyright expanded to cover maps, charts, graphic art, and more, as technology and culture required. The current definition of works covered by the Berne Convention, the oldest and largest multilateral treaty on copyright protection, includes:

Click here to read Joshua Graubart's full article...

“Anything Goes”? Not Necessarily
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
 “Anything Goes”? Not Necessarily | Mark Kaufman

You might think that the inaccuracy of the following statement is obvious: “If it’s on the internet, it’s free.”‘ Still, many of today’s internet users, including business owners, seem to believe it and use what they download with litigious results. There are at least two lawsuits in the Southern District of New York—Veronina v. Scores Holding Company and Taylor v. 44th Enterprises, d/b/a Diamond Club Gentlemen’s Cabaret—that involve the unauthorized use of images downloaded from the internet. Specifically, dozens of women are suing over the use of their photos in advertisements for strip clubs and escort services. (Not surprisingly, both cases are brought by the same attorneys.)

Click here to read Mark Kaufman's full article...

FAQ: What Should I Expect When Meeting with a Patent Attorney?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
FAQ: What Should I Expect When Meeting with a Patent Attorney? | Pat Werschulz

{Read in 4:50 minutes} Many times when meeting with clients for the first time, they are very shy and say, “I’ve never met with a patent attorney before.” They don’t know what to expect or what they need to bring to the first appointment in order to discuss whether they should pursue a patent. There are some common things that every patent attorney will ask and review with potential clients. Some patent attorneys use what’s called a disclosure form, which asks the same questions that other attorneys go over in the initial meeting.

Click here to read Pat Werschulz' full article...

How Can I Get My Patent Application Approved Faster?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
How Can I Get My Patent Application Approved Faster? | Pat Werschulz

{Read in 4:30 minutes} A question I often get is, “How long does it take to get a patent?” There may be business reasons to get your patent faster, such as to attract by showing investors you have a patentable idea. Or perhaps you just want to have patent protection before you introduce your product to the market. There may also be personal reasons; you need to move onto the next stage in your life and want to get this finished. So, how can you get your patent faster?

Click here to read Pat Werschulz' full article...

Creative Team Behind Broadway’s Jersey Boys Hit with Copyright Infringement
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Creative Team Behind Broadway’s Jersey Boys Hit with Copyright Infringement | Mark Kaufman

Big girls may not cry, but the creative team behind the smash Broadway musical Jersey Boys might be doing just Creative Team Behind Broadway’s Jersey Boys Hit with Copyright Infringement that. On November 28, a jury in Nevada federal court found that the musical’s creators were guilty of copyright infringement—to the tune of 10% of the show’s profits. Jersey Boys centers around the life and times of 1960s doo-wop group The Four Seasons. After retirement, Tommy DeVito, who was a founding member of the band, began work on an autobiography with the help of a ghostwriter (also known as an “uncredited co-author”) named Rex Woodward. After Woodward succumbed to lung cancer in 1991, DeVito changed his tune about who had written the unfinished book, claiming that he alone authored it. Further, he gave permission for it to be used as the basis for the musical that would become Jersey Boys.

Click here to read Mark Kaufman's full article...

Great News, Your Patent Application Has Been Rejected!
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Great News, Your Patent Application Has Been Rejected! | Pat Werschulz

{Read in 4:30 minutes} Whenever I start a conversation with a client with the phrase, “Good news: Your patent application was rejected,” I get: “What?” I always tell my clients from the very beginning that patent applications normally are rejected, and it’s a good thing. Over 90% of all patent applications have at least one rejection when they’re first examined by a patent examiner.

Click here to read Pat Werschulz' full article...

What is Intellectual Property?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .

{3:54 minutes to read} “Intellectual property” consists—as the name suggests—of “creations of the mind,” and more specifically, of commercially valuable aspects of those creations. As the name also suggests, “intellectual property” is a subcategory of “property.” Unlike, for example, real property (land) or chattel (other tangible property, such as a car or a horse), intellectual property is intangible: it can’t be seen or picked up, and it has no “natural” form or limits. Unlike land or livestock, it does not exist except to the extent it is created by law. Its boundaries, consequently, follow no “natural” form; rather, its boundaries are solely and precisely those described by law.

Click here to read Joshua Graubart's full article...

DIY Patents: Some Things May Be Best Left to the Professionals
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
DIY Patents: Some Things May Be Best Left to the Professionals | Pat Werschulz

Oftentimes I hear from people who have started the patent process on their own—called representing yourself. The legal term for that is pro se. I addressed some aspects in this issue a few months back, but I want to elaborate. Is This a Good Idea? I’ve also talked previously about the various reduced fee and pro bono opportunities for those inventors who do not have the financial resources to use a patent attorney to help them get a patent. Not everybody qualifies, so people are tempted to do it DIY.

Click here to read Pat Werschulz' full article...

Freedom to Operate: Important for Every Type of Business
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Freedom to Operate: Important for Every Type of Business | Pat Werschulz

{4:50 minutes to read} Anybody who’s introducing a new product into the retail space needs to worry about whether that new product is infringing somebody else’s patent or trademark. Patent Issues Some of my clients who are in the process of getting a patent, or already have a patent, on a device don’t really understand it. They say, “I have a patent. Why do I need to worry if I’m infringing on somebody else’s?” Well, the truth of the matter is that most new things actually depend on pre-existing things. You may have something new, but elements of that may have existed and may be covered by somebody else’s patent.

Click here to read Pat Werschulz' full article...

Trademarks: Register Early and Register Often
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Trademarks: Register Early and Register Often | Mark Kaufman

Recently a lawsuit over a prominent band’s name was filed in state court in Virginia. At first glance, the lawsuit has the ingredients required for an intellectual property case eligible for federal jurisdiction. So why is it being argued in state court? The lead plaintiff, Aston “Family Man” Barrett, began playing with Bob Marley and his band The Wailers in 1969. After the original band members dropped out, Barrett was the last remaining original member until he quit earlier this year. However, The Wailers did not miss a beat and kept touring all over the world.

Click here to read Mark Kaufman's full article...

Part of the System: You and Your Voting Machine
avatar


Authored by , re: Intellectual Property, on .
Part of the System: You and Your Voting Machine | Pat Werschulz

This year is an election year. It’s a very important federal election, with the office of the President at the top of the ticket. Everybody in the House of Representatives is up for election, as well as a third of the Senate. Although federal offices are on the line, voting is controlled by individual states. Each state has its own rules for voting and its own way of conducting the election. A Little History on Voting Machines When I was growing up, I used to go to the polls with my parents. I remember them being handed a paper ballot, then going into a booth, closing the curtain, marking the paper ballot, and returning it all folded up, then placing it into a ballot box.

Click here to read Pat Werschulz' full article....

In the World of DIY, Should I Write My Own Patent Application?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
In the World of DIY, Should I Write My Own Patent Application? | Pat Werschulz

{6:50 minutes to read} While people can file patent applications themselves, it’s very difficult to get through the entire patent process without the help of a professional patent attorney or agent. There are many things on the internet and on TV to encourage people to DIY—do it yourself. There are programs on how to remodel your house, how to cook, and how to make clothes. You can find information through sites such as Pinterest and many others. When somebody comes up with an idea for an invention, the first question they ask is, “How much does it cost to get a patent?” When they find the answer, they think, “Well, why don’t I just try to do it myself?”

Click here to read Pat Werschulz' full article...

Protecting Cannabis Trademarks
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Protecting Cannabis Trademarks | Mark Kaufman

Recently we met a client who wants to develop a brand for use in connection with a cannabis product, in one of the 23 states (and the District of Columbia) where it’s legal.  While cannabis is clearly a growing business, selling it is still a criminal offense in the eyes of the federal government.  So, the challenge is to protect a brand without the aid of the US Patent and Trademark Office (USPTO).   The USPTO reasons that federal trademark protection requires use of the trademark in interstate commerce, and interstate sale of marijuana violates the federal Controlled Substances Act.

Click here to read Mark Kaufman's full article...

 

How to Be a Pro with Pro Bono
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
How to Be a Pro with Pro Bono | Pat Werschulz

{3:25 minutes to read} Many owners of startup businesses are understandably concerned about the cost of protecting their intellectual property. The patenting process can be expensive and a little bit scary, with an uncertain outcome. For those who are “bootstrapping” it—working with their own money, without borrowing or having partners or investors—it can be even harder. Such people usually can’t afford to pay for a patent attorney to help them with the application.

Click here to read Pat Werschulz' full article...

Leaving Your Job to Start Your Own Shop?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Leaving Your Job to Start Your Own Shop? | Mark Kaufrman

{4:48 minutes to read} It’s exciting to find yourself in a place where you can start your own business—exciting and frightening. But, if you’re leaving a place of employment to start your own shop, it’s very important to be sure that your present employer is not inadvertently going to own a piece of the work that you do for yourself, or have a claim against you for taking clients. If you have a non-compete agreement in place, that would give a pretty clear sign that you couldn’t take clients whom you met while you were working for the employer. But even if you don’t have a non-compete agreement, you still have restrictions on what you can do, if you do it during your regular business hours and use your employer’s facilities.

Click here to read Mark Kaufman's full article...

Do I Need a Working Prototype Before Filing My Patent? Ask Edison!
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Do I Need a Working Prototype Before Filing My Patent? Ask Edison! | Pat Werschulz

{5:00 minutes to read} Today I want to talk about a book I just finished reading, called The Last Days of Night: A Novel by Graham Moore, about the patent wars between Thomas Edison and George Westinghouse.  Edison filed over 300 patent infringement lawsuits against Westinghouse. The Characters Thomas Edison – Attributed with having invented the light bulb, among many other things; patented the direct current (DC) lighting system.

Click here to read Pat Werschulz' full article...

Are You a Nigerian Prince, or Do You Just Want My Money?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Are You a Nigerian Prince, or Do You Just Want My Money? | Mark Kaufman

Attorneys beware: The equivalent of the so-called “Nigerian prince who has been trying to contact you” has found out where you work! Recently I received a referral for a potential client from another attorney. The first email from this potential client, whom I will call Mr. Jones, explained that he had matters pending in three different jurisdictions.

Click here to read Mark Kaufman's full article...

Has Your Fashion Design Fallen Victim to Gaps in Copyright Law?
avatar


Authored by , re: Intellectual Property, LAW RELATED ARTICLES, on .
Has Your Fashion Design Fallen Victim to Gaps in Copyright Law? | Pat Werschulz

{5:20 minutes to read} Fall Fashion Week starts September 8, 2016, creating a lot of excitement and traffic in the New York area. That brings to mind: What type of intellectual property protections are there in the United States for fashion? Unfortunately, there’s not a lot to protect fashion design. If a designer comes up with a fabric pattern, that pattern can be protected by copyright law, but alas copyright is not allowed for useful articles—and clothing is considered a useful article.

Click here to read Pat Werschulz' full article...