Misinformation abounds when it comes to patents. While facts about patents would fill volumes, here are few interesting facts about patents you can use to regale your geeky relatives over the holidays:

10. You can keyword search millions of patents on Google Patent Search for free.

9. Patents expire 20 years after you file your application. Patent terms used to be 17 years from the date the patent issued. Some inventors, however, were intentionally dragging their feet, waiting until someone else brought their technology to market before having their submarine patents issue. Now, if you drag your feet for 19 years, your patent will only be valid for 1 year.

8. You must pay the Patent Office “maintenance fees” to keep your patents in force. Failure to pay these fees due at three and a half, seven and a half, and eleven and a half years from the date the patent is granted will cause your patent to become abandoned.

7. No patent search is 100 percent effective. Even if you searched all 7 million plus patents, patent applications are kept confidential for at least 18 months after filing. Theoretically someone else’s patent could issue on your invention the day after your searched every published patent and patent application.

6. On average, your patent application will be pending nearly three years. This is not all bad though. Although you enforcement rights are severely limited while the patent is pending, having a competitor build up a demand for your product before the patent issues can be a very profitable turn of events.

5. There is no such thing as a “Poor Man’s Patent.” Relying on a letter you mailed yourself to protect your invention actually provides no protection whatsoever.

4. Just because you have a patent, does not necessarily mean your invention is valuable. Inventors have succeeded in obtaining patents on some pretty wacky inventions.

3. If your invention cannot be “reverse engineered” a trade secret may be a cheaper, easier and longer lasting alternative to a patent.

2. Ordinary attorneys are not allowed to draft patents for clients. To become a patent attorney, you have to have an undergraduate degree in a science, or the equivalent, and have passed the notoriously challenging patent bar exam. No two patents, or patent attorneys, are created equal. It would be extremely unlikely two patent attorneys would draft identical patent applications covering a given
invention. The patent attorney’s experience, and skill and knowledge of the field of art, all factor into whether the patent will be broad and enforceable or narrow and easily invalidated.

1. A patent does not give you the right to make your invention. Your patent merely gives you the right to prevent others from making your invention. The United States Patent and Trademark Office will grant patents on inventions which are improvements on other patented inventions. A patent in hand notwithstanding, if your invention infringes on a valid patent, you cannot make your invention absent a license agreement from the other patent holder.

Brett Trout

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Defamation

Defamation is defined by state laws, which vary from state to state. Generally, defamation is defined as a false, published statement, which harms someone’s reputation. It is these three elements: Falsity, Publication and Harm, which qualify a statement as defamatory. Written defamatory statements are referred to as Libel, and spoken defamatory statements are referred to as Slander. While online and offline defamation are treated the same there are a few subtleties to online defamation that do not directly apply to offline defamation. To appreciate these subtleties, it is important to understand defamation in general.

Publication

Publication simply means that the statement was understood by a third party other than the defamer or the defamed. It only takes one other person to understand the statement to find liability. If the person alleging defamation is the one relaying the false statement to the third party, however, that does not constitute publication. “Qualified” and “Absolute” privileges prevent certain kinds of statements from being defamatory publications. In certain instances, these privileges allow a lawyer to make statements in the context of a court proceeding or a crime victim to make a statement to a police officer without being found liable for defamation.

Opinions

The First Amendment to the U.S. Constitution grants an “opinion privilege.” While the opinion privilege carves out wide protection, simply adding “It is my opinion that . . .” in front of an otherwise defamatory statement does not insulate the defamer from liability. The privilege protects only two types of speech: 1) that which is not “capable” of being proven false; and 2) that which cannot reasonably be “interpreted as stating actual facts” about the plaintiff.

The first type of protected opinion relates to assertions such as calling someone a “Butthead“ or opining “due to ongoing financial pressures, the outlook for ABC Corp. refunding its bond is negative.” How could you possibly prove these statements false? If it is not false, it is not defamation. The second type of protected opinion relates to statements that “appear” to relate to specific facts, but which cannot reasonably be “interpreted as stating actual facts” about the plaintiff. Even if the defamer uses terms like “blackmail” and “traitor” there is no defamation if the statement is clearly satirical. This privilege goes so far as to protect Larry Flynt printing an ad parody of Jerry Falwell having sex with his own mother in an outhouse was found by the courts to be clearly related to rhetorical hyperbole, or use in a loose figurative sense. Regardless of how inappropriate the publication might have been, it was not defamatory.

Damages

Although damages are presumed in most types of defamation cases, proving evidence of actual damage often increases the eventual monetary award. Damages in a defamation case can be shown through a detailed description of the victim’s prior reputation and the extent to which the defamatory statement was distributed. Associated damages may include loss of income, emotional distress, physical pain and suffering, medical bills for mental anguish, humiliation and embarrassment.

Malice

In some instances, such as when the victim is a public figure, or when you are seeking punitive damages, you do have to prove actual malice. Actual malice typically means that the statement is either made with knowledge that it is false or with reckless disregard for whether or not it is false.

Defamation Online

Blogs and other forms of social media are treated the same as other forms of main stream media. In the real world, individuals are just as liable as the defamer if they repeat a statement they know is defamatory. In the online world however, Section 230 of the Communications Decency Act grants bloggers a little wiggle room. Section 230 states that providers of interactive computer service are not treated as “publishers” of any information provided by a third party. This applies to guest posters, comments, forum posts et cetera. This immunity, however, does not relate to information selected or edited by the blogger, or to other claims, such as intellectual property infringement.

Avoiding a Lawsuit

Defamation often incites plaintiffs to bring cases they might not otherwise bring. Even if the case is difficult to prove and the damages small, plaintiffs often bring defamation cases to vindicate what they see as a moral wrong. Avoiding a lawsuit for defamation involves much more than following the foregoing rules. It involves assessing the “victim” to determine if they are someone who might bring a defamation suit regardless of whether or not the law is on their side. In terms of bringing a suit for defamation, it is important to assess whether the lawsuit will cause more harm than good in drawing attention to an esoteric blog post no one would otherwise have read. In both instances, discretion is the better part of valor.

Brett Trout

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Markets for “used” virtual goods have been around for more than a decade. Markets for “used” digital music, movies and software are sure to come. Virtual used markets have the potential to provide not only greater profits to content producers, but greater value to consumers as well. This all comes at the expense of distributors like record labels and licensing organizations like the MPAA and RIAA.

How long distributors and licensors can stand against their eventual irrelevance is anyone’s guess. Even if Bopaboo eventually loses its battle against these behemoths, the resale of used digital media promises to be the record and licensing industries’ long overdue Waterloo.

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The Cheaters
Given the reach of social networks, and the time and talent it takes to build valuable connections, it is not surprising some social networkers “cheat” by creating social media accounts using the identity of a famous person or company. Certainly adopting a persona like Barack Obama will attract a larger network of followers more quickly than using a name like John Smith . So what do you do if you or your company is the victim of an accountjacker?

Act Quickly
If an accountjacker is using your name to deceive your customers or dilute the distinctiveness of your trademark, time is of the essence. Any delay can translate into the loss of hundreds of thousands of dollars, as well as the loss of customer goodwill you might never recover. While it is importantly to act quickly, it is just as important not act without undertaking a little due diligence first.

Determine Why
Some accountjackers are merely interested in defrauding your customers to make as much money as quickly as possible. Others may actually be fans, or “evangelists,” promoting you or your company. The appropriate initial contact with the accountjacker depends a lot upon which type of accountjacker you have. Coming down too softly on an “unfriendly” accountjacker may bolster them to continue, or even expand their fraud. Conversely, coming down too harshly on a “friendly” accountjacker, especially a particularly powerful evangelist for your product can backfire , leading to a public relations nightmare far greater than the accountjacking.

What Causes of Actions do I Have?
While there are no laws presently address accountjacking specifically, the law provides victims of accountjacking with many types of recourse. The type of recourse available will depend upon the particular venue and actions of the accountjacker. Potential types of redress include:

Trademark Infringement - A prior federally registered trademark on the account name not only provides direct access to federal courts to address issues of trademark infringement, but the threat of triple damages and attorney fees is often enough to stop the infringer with nothing more than a cease and desist letter.

Terms of Service Violation - If the accountjacker is outside of the country, or otherwise difficult to locate, you may want to check the Terms of Service associated with the social network involved and contact the administrator with your concerns. Contacting the administrator can be hit or miss. While some social network are very proactive in dealing with accountjackers, others often go out of their way to stay out of the fray.

Defamation - If the accountjacker is using the social network to make false statements causing you damage, you may have a cause of action for defamation. Given the difficulty of proving damages attributable to the defamatory statements, it is often desirable to include at least one other type of claim in your lawsuit against an accountjacker.

Fraud - Making a case for fraud can be very effective if you can prove the requisite facts. Most important is proof of deceit either for personal gain or damage to you.

False Light - False Light involves the implication that the victim has done something which a reasonable person would find highly offensive. Damages may be difficult to prove in a case of False Light.

Conclusion
The forgoing is just a snippet of the potential causes of action a victim might have against an accountjacker. If you are the victim of an accountjacker, you really need an experienced lawyer to keep you from making the problem worse. Contact a lawyer in your jurisdiction who has experience with this area of law.

Properly assessing the situation and pursuing the proper course of action quickly can often mean the difference between resolving the issue with a letter and dumping tens of thousands of dollars and years of your life into a lawsuit. If you are very lucky, you may even be able to leverage the accountjacking into a public relations boost .

In my next post, I will examine how to voice your opinion, while reducing the likelihood of getting sued for accountjacking.

Brett Trout

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Do you carefully read the terms of use on every Web site you visit? Were you aware that violating those terms could result in twenty years in prison and a $1 million fine?

Recently, a federal judge sentenced a television news anchor, caught snooping through his co-anchor’s email, to six months of home confinement, 250 hours of community service and a $5,000 fine. He was also summarily fired from his $700,000/yr job. Selling your company’s confidential information? That may just earn you a ten year all expense paid prison vacation. Sending threatening emails? Up to ten years in prison. Selling impostor watches on eBay? Seventy years. Even if you are acquitted, you may have to fight a costly legal battle a half a continent away.

The bottom line is that federal investigators are cracking down on cybercrime now more than ever before. More importantly, judges are handing down harsher and harsher sentences. Given the huge potential criminal penalties involved with something as seemingly innocuous as violating a Web site’s terms of use, it is well worth educating yourself about the dos and most-certainly-do-nots of cyberlaw.

Brett Trout

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The jury deadlocked on the conspiracy charge and convicted Drew of several misdemeanors. Despite the misdemeanor convictions however, it is unlikely Drew will spend time in custody.

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What Can I Patent?
While there are special types of patents offering limited protection, such as plant patents and design patents, when people speak of patents, they are typically referring to utility patents. Utility patent protection is available for machines, compositions of matter and methods tied to, or transforming, matter, as well improvements upon any of the foregoing. Patents can not protect ideas, obvious combinations of pre-existing devices, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity.

How Valuable Are Patents?
The value of a patent depends upon several factors: how valuable is the underlying invention, what similar products are already out there, how skillful was your patent attorney in drafting and prosecuting the patent and how well the inventor markets the invention. A patent is really like a safe deposit box for keeping valuables. Patent can not make inventions better and being awarded a patent, even a broad patent, does not even mean that an invention is valuable. There are thousands of patents on inventions that never enjoyed commercial success. The value of a patent depends upon whether the invention will sell. If the invention will sell like hotcakes at a profitable price, a patent would be very valuable. The fact that the patent prevents competitors from entering the market and driving down the price on a hot selling item, means monopoly profits and/or lucrative licensing agreements for the patent owner.

How Long Does a Patent Last?
Assuming all of the governmental maintenance fees are paid in a timely manner, patents expire 20 years from the date the application for patent was filed. Between the time the application is filed and the date the patent is issued, the patent applicant has no right to stop others from making using or selling the invention.

What Does a Patent Look Like?
Google Patent Search has millions of patents anyone can search and review. While most people gravitate to the detailed specification and drawings in a patent, the real heart of the patent is the claims. Each claim is a one-sentence description of the invention. A great claim is narrow enough to differentiate the invention over all pre-existing devices, but broad enough to cover obvious modifications competitors might try to circumvent the patent.

What Makes a Great Patent?
No two patent attorneys are going to draft the same patent covering a particular invention. The breadth of a patent is closely correlated with the skill and knowledge of the patent attorney drafting it. Obtaining a narrow patent is a relatively easy matter, which most laypeople could accomplish with a little instruction. Given the ease with which a competitor can design around a narrow patent, event the United States Patent and Trademark Office does not recommend tackling a patent without the aid of a patent attorney.

A skillful patent attorney is not the only component of a great patent. A great patent often requires more time and money than a bad patent. The novelty of the invention also plays a hand in the breadth of the patent. It is not difficult to gain broad patent protection on a truly pioneering invention. By the same token, it is hard to gain more than minimal patent protection on an incremental improvement over the way things were done before. All of these factors play into the value of a patent.

The Infringing Patent
It surprises most people to learn a patent does not give you the right to DO anything, only the right to prevent others from doing something. The Patent Office does not care if your invention infringes an existing patent as long as your invention is an improvement over that other invention. Why would you want a patent on an invention which infringed someone else’s patent? Well, if an inventor were to invent a chair and receive a patent thereon, a subsequent inventor could file and obtain a patent on a rocking chair. Neither the first patent owner nor the second patent owner could make the rocking chair without infringing the other’s patent. However, the parties could negotiate a cross-license where both parties pay each other a royalty in exchange for being allowed to manufacture the improved device.

Pursuing Infringers
If someone infringes a patent, a court may order them to stop infringing (injunction) and/or order them to pay damages. If the judge or jury finds the infringement was intentional, the court may order the infringer to pay triple damages and attorney fees (which alone are often $1 Million or more).

Starting the Process
The Patent Office (USPTO) is a good place to start your quest for a patent. The USPTO website has a lot of information about patents and the application process. Although it is difficult to determine definitively from the Patent Office database or Google Patent Search whether your idea is patented, you may get lucky, or unlucky as the case may be, and stumble upon your idea in another patent. If your searches do not turn up anything similar, you may wish to enlist a patent attorney to do a more comprehensive search on your behalf. Even the best patent search however is not exhaustive. Many patents are not made public until after they have been on file for eighteen months.

If the patent search goes well, you may wish to have the patent attorney prepare and file a patent application on your behalf. Although the process is long and costly, if the invention is a winner, a patent can be the difference between whether you or someone else capitalizes on your idea.

Brett Trout

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Twitter Des Moines
A group of online entrepreneurs converting virtual conversations into real world handshakes may not seem all that unusual. What is unusual is that nowhere is this happening to a larger proportion of the population than right here in Des Moines. Des Moines "Tweeps" from sixteen to sixty not only share an exponentially expanding online conversation, but they regularly translate the conversation into impromptu real world meetings.

Coworking in the Capital City
One Tweep rising to the top of the local Twitter pack is entrepreneur Daniel Shipton. Shipton is the brains behind Iowa’s first coworking venue, Impromptu Studio. After building an impressive following online — as well as off — Shipton has decided to give a little something back to his community. Tonight, November 6, Shipton and Impromptu Studios will be hosting Ignite Des Moines.   

What is Ignite?
Ignite events revolve around a series of presenters allowed 20 slides and only five minutes to give what at most events would cover an hour or more of presentation time. This affords attendees the opportunity to take in a dozen highly-charged informative talks in the time it would otherwise take to see only one. The densely packed presentations are simultaneously informative and entertaining.

What Else Will I Experience?
In addition to the Ignite presentations, Ignite Des Moines will also include the 2008 Iowa Web Awards presentation by 48 Web, free food and libations, and an egg catapult engineering contest. The entire event is free and wraps up with several "150 second Expert" presentations. These closing presentations involve experts reprising their rapid-fire presentation style, albeit using slides they have never seen before and covering a topic far outside of their own expertise.  As results range from the hilarious to the often embarrassing they are not recommended for the easily offended.   

Most Importantly
While Shipton has gone out of his way to ensure the Ignite Des Moines program rivals that of far larger cities, the real draw is the Ignite community. From artists to entrepreneurs to those just interested in learning more about the vibrant entrepreneurial environment thriving in Greater Des Moines, Ignite Des Moines will draw people of all ages, experiences and backgrounds. The only commonality is that the attendees are all people you should get to know.

See you tonight!

Brett Trout

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Bad vs. Good
The recent downturn in the economy has translated into good news and bad news for lawyers. The bad news - Experts predict a drop in law firm profits, cuts in associate bonuses, hiring freezes, layoffs and a generally grim outlook for law firms. The good news - With clients seeking more transparent relationships and more value for their legal budget, these dire predictions targeting large law firms could be a boon to solo practitioners.

Enter Solo Practice University
One of the latest online tools available to the solo practitioner is Solo Practice University™ (SPU). This brainchild of Susan Cartier Liebel of Build a Solo Practice, promises to be practical, timely, fluid, creative, interactive and fun. Unlike many live legal lectures, which all too frequently serve as nothing more than an hour long law firm infomercial, SPU materials are produced by solo practitioners, for solo practitioners. While I would like to believe the SPU faculty (while includes this humble blogger) is SPU’s biggest draw, the real benefit of SPU is its vast community of attorneys sharing insight, solutions and collegiality. If you have never experienced social networking, here is your chance to jump into “professional networking” with both feet. SPU promises to be simple, fun, educational and, if you are not careful, an unparalleled practice builder.

Brett Trout

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For a more mainstream media take on the Bilski ruling, check out Business Week, The Wall Street Journal, Bloomberg, Techdirt, and Forbes.

There will certainly be lots more to come, but for right now, I am sticking to my guns. I predict that post-Bilski the term “Business Method Patent” will be reserved for accused infringers making pejorative jabs at “naked” business method patents. Business method patent protection will still exist, but only in conjunction with something tangible and/or the transformation of something tangible.

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