Category: Intellectual Property

To Boldly Go Where No Nerds Have Gone Before…
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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.

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

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Patent Law: Business As Usual
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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…

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The Blurry Boundaries of Copyright
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{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:

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“Anything Goes”? Not Necessarily
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 “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.)

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

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How Can I Get My Patent Application Approved Faster?
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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?

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

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Great News, Your Patent Application Has Been Rejected!
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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.

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What is Intellectual Property?
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{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.

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

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Freedom to Operate: Important for Every Type of Business
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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.

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Trademarks: Register Early and Register Often
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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.

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Part of the System: You and Your Voting Machine
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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.

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

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Protecting Cannabis Trademarks
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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.

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How to Be a Pro with Pro Bono
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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.

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Leaving Your Job to Start Your Own Shop?
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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.

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

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

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

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Characters and IP Law: The Personalities of Stephen Colbert
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Characters and IP Law: The Personalities of Stephen Colbert by Mark Kaufman

When he was on Comedy Central’s The Daily Show and The Colbert Report, Stephen Colbert committed to a character that has the same name as his. The character is a greenback conservative who keeps an American shield under his desk—a character who popularized the word “truthiness” (yes, it’s a real word). When Colbert took over David Letterman’s job on CBS’s Late Night, he announced that he would retire the character and be himself.

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Atlantic v. Reddit: A Principled Stance or a Fool’s Errand?
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Atlantic v. Reddit: A Principled Stance or a Fool’s Errand?| Mark Kaufman

Atlantic Recording Corp. has filed a petition in the New York State Supreme Court seeking to compel the internet message board Reddit to reveal who posted a link that directed the user to a pirated version of a song that hadn’t been released yet. The recording is named “Heathens,” performed by a hip-hop duo named 21 Pilots, and is part of the soundtrack to the movie Suicide Squad. According to the papers Atlantic filed with the court, the leak resulted in substantial damages, because Atlantic was no longer able to execute its strategic promotional prerelease and, as a result, suffered a loss of sales. The filing seeks permission to subpoena Reddit in order to determine the IP address of the user who leaked the song. Atlantic argued that Reddit is the only entity that can tell who posted the link.

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Design Patents: Form, Not Function
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Design Patents: Form, Not Function| Pat Werschulz

{4:10 minutes to read} A good design patent can be asserted in court and can protect a product. In previous blog posts, I’ve talked a lot about utility patents. Today, I’ll talk about design patents. Some of the laws and regulations that apply to utility patents also apply to design patents—but in many ways, design patents are unique unto themselves. Conceptually, it’s hard for people to wrap their brains around the difference between a utility patent and a design patent.

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What is the Cost to File a Utility Patent?
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What is the Cost to File a Utility Patent?|Pat Werschulz

{Read in 4 minutes} A common question people have is: How much does it cost to get a utility patent?The answer: It depends. There are many variables that can affect the total cost, such as the complexity of the invention and how much prior art already exists. That said, some aspects can be discussed in general terms. Keep in mind, we are discussing utility patents, not design patents. There are two components to filing a patent fee:

  1. The fee you pay the government
  2. The fee you pay your attorney

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2|Pat Werschulz

{4:00 minutes to read} Three Billy Goats Gruff are crossing a bridge. A patent troll materializes on the bridge and blocks their way. “Pay me a licensing fee or I’ll throw you off the bridge,” he demands. In order to understand the phenomenon of so-called “patent trolls,” one must first understand what a Non-Practicing Entity (NPE) is. NPEs are often the innovators who perform all of the research and development that goes into an invention—but instead of marketing and selling it themselves, theylicense it to a third party.  Many of my clients are individual inventors who do not wish to start a company around their invention but are hoping to license to manufacturers to produce and distribute.

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Guidance & Diagnostic: New Patent Eligibility Examples
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Guidance & Diagnostic: New Patent Eligibility Examples |Silvia Salvadori, PhD

{3:35 minutes to read} On May 5, 2016, the USPTO published new patent eligibility examples, including two examples related to diagnostic methods (examples 29 and 31). Example 29 is directed to a method for diagnosing and treating Julitis (a hypothetical disease). According to the hypothetical, Julitis is an autoimmune disease causing chronic inflammation of the skin. Julitis is conventionally diagnosed by a physical examination of the skin, which shows a rash. This rash appears to be similar to rashes caused by rosacea, and therefore, Julitis is often misdiagnosed.

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Domain Names: Use ‘Em or Lose ‘Em
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Domain Names: Use ‘Em or Lose ‘Em| Mark Kaufman

Recently a client of mine was approached by a company that buys and sells domain names. It was claiming to represent another company that wanted to buy my client’s domain name—but remain anonymous. I was intrigued and took to the internet to search through all of the new products coming out with names that were similar to my client’s domain name. I narrowed it down to one product that is sold by an extremely large company—a product that was 100% wholesome and was featured alongside great Americana imagery like people playing baseball, going out for picnics, and standing around in gazebos.

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1 | Pat Werschulz

{4:00 minutes to read} On the first day of summer, the decision in the US Supreme Court case of Cuozzo Speed Technologies, LLC  v. Lee was handed down. The ruling affirmed the new practice of post grant reviews of patents already granted—which could have broad implications for patent owners, especially Non-Practicing Entities (NPEs), including so-called “patent trolls.” Post-grant review is a relatively new feature in US patent law that allows the Patent Trial and Appeal Board (PTAB) to invalidate patents which have already been granted.

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