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Farmers Fight for the Right to Repair: How the FTC’s Lawsuit Against Deere & Company Impacts Agriculture

Brett Trout

In a move aimed at protecting farmers from rising repair costs and unfair business practices, the Federal Trade Commission (FTC), along with the Illinois and Minnesota Attorneys General, has filed a scathing lawsuit against Deere & Company, alleging Deere raised unfounded environmental, safety, and intellectual property concerns to combat state right-to-repair legislation. This high-profile case has sparked conversations across the agricultural and legal sectors, shedding light on the importance of the right to repair in the farming industry.

Here’s what intellectual property attorneys and agricultural innovators should know about this landmark case.

The Core Issue: Repair Restrictions on Agricultural Equipment

Deere & Company has long been a leader in the manufacturing of farming equipment. However, the FTC’s complaint accuses Deere of monopolizing repair services for its products, limiting farmers’ ability to repair their machinery themselves or through independent repair providers.

Key allegations include:

  • Software Lockdown: Deere’s fully functional repair software, Service ADVISOR, is available only to its authorized dealers. Farmers and independent repair providers cannot access the tools necessary for comprehensive repairs.
  • Market Control: By withholding the essential software, Deere has allegedly maintained a 100% market share in certain repair services, effectively eliminating competition.
  • Increased Costs: Farmers are forced to rely on Deere’s authorized dealers for repairs, often at higher costs and with delays that impact time-sensitive farming operations.

Why the Right to Repair Matters

For farmers, time is money. Equipment breakdowns during planting, spraying, or harvesting seasons can result in devastating losses. The right to repair allows farmers to fix equipment quickly and cost-effectively, ensuring operations stay on schedule.

Benefits of the right to repair include:

  1. Cost Savings: Independent repair providers often charge less than authorized dealers.
  2. Efficiency: Immediate access to repair tools means faster fixes and less downtime.
  3. Competition: Empowering independent repair shops promotes market competition and innovation.

Implications for the Intellectual Property and Legal Community

The FTC’s lawsuit against Deere raises important questions about how intellectual property rights intersect with antitrust law and consumer protection. Deere’s control over repair tools stems from intellectual property protections tied to its software. While these protections are intended to reward innovation, they must be balanced against the broader public interest.

Intellectual property attorneys working with innovators in the agricultural or manufacturing sectors should consider:

  • How to structure intellectual property protections without crossing into anticompetitive behavior.
  • The potential impact of regulatory changes on licensing practices and software development.
  • The evolving expectations of consumers and lawmakers around fair repair practices.

FTC’s Goals and Next Steps

The FTC is seeking a permanent injunction to compel Deere to:

  • Make its Service ADVISOR tool and other repair resources available to farmers and independent repair providers.
  • Cease practices that restrict repair options for farmers.

If successful, this lawsuit could set a precedent for other industries, potentially reshaping how repair rights are handled across sectors.

Conclusion

The right to repair is a critical issue for farmers and the broader economy. The FTC’s lawsuit against Deere & Company highlights the challenges of balancing intellectual property rights, competition, and consumer needs. As this case unfolds, its outcome could significantly influence intellectual property law, antitrust regulations, and the future of agricultural innovation.

For farmers, inventors, and businesses navigating these complex issues, partnering with experienced intellectual property attorneys ensures compliance and maximizes opportunities in an evolving legal landscape.

Stay tuned for updates on this case and its implications for the intellectual property and legal industries. If you have questions about intellectual property or repair rights, contact us for guidance.

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By Brett Trout
January 17, 2025

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Using a Contingent Fee Attorney to Avoid the High Cost of Patent Litigation

Brett Trout

The Cost of Defending Your Patent

As an inventor or patent holder, your intellectual property represents years of hard work, creativity, and financial expenditures. But what happens when another party infringes on your patent rights? The average cost of taking your patent infringement case to a jury is $2.8 million. Even for smaller cases, where the damages are less than $1 million, the patent litigation costs average $700,000. These fees can seem overwhelming, especially for individual inventors. This is where a contingent fee structure can make all the difference.

What Is a Contingent Fee Structure?

A contingent fee arrangement means your attorney’s fees are tied to the success of your case. Rather than paying hourly fees upfront, your attorney receives a percentage of the damages or settlement you recover. If you are not awarded any money, you pay no attorney’s fees. This structure aligns your interests with your attorney’s and makes enforcement more accessible to innovators and small businesses.

Protect Your Competitive Edge: By stopping infringers, you maintain your market advantage.

Recoup Lost Revenue: Infringement often leads to financial harm; enforcement can help you recover damages.

Strengthen Your Portfolio: Successfully enforcing patents sends a strong message to competitors about the strength of your patent rights and your intention to defend them.

Benefits of a Contingent Fee Structure

Patents grant you the exclusive right to make, use, sell, and license your invention. When someone infringes on these rights, they’re not just violating your intellectual property—they’re undermining the value of your hard work. Using contingent fee arrangements to enforce your patent rights against infringers offers many benefits: 

  1. Accessible to All Inventors
    Pursuing patent enforcement can be costly. While a contingent fee arrangement does not cover third-party costs such as expert witness fees, they cover attorney’s fees which typically make up the vast majority of litigation costs. Large financial outlays for attorney’s fees may deter smaller businesses and individual inventors. With a contingent fee structure, you can pursue justice without bearing the majority of the financial burdens upfront.
  2. Aligned Interests
    In a contingent fee arrangement, your attorney is invested in the success of your case. This creates a partnership where your goals—maximizing recovery and protecting your IP—are mutually aligned.
  3. Reduced Financial Risk
    If the case doesn’t result in a recovery, you won’t owe attorney fees. This reduces your risk and lets you focus on the potential upside.
  4. Experienced Representation
    Attorneys who take on cases on a contingent basis are selective about the cases they pursue. This means they’re confident in the merits of your claim and have the experience and resources to handle your case effectively.
  5. Focus on Innovation
    A contingent fee arrangement frees you to concentrate on your business and inventions without worrying about attorney’s fees piling up.

What to Look for in a Contingent Fee Attorney

When considering an attorney for a contingent fee arrangement, ensure they have:

  • Patent Litigation Experience: Look for a track record of successfully litigating patent enforcement cases.
  • Patent Drafting Experience: The more experience your attorney has with patent prosecution before the Patent Office the better they will be at anticipating and defending against attacks on the validity and scope of your patent. 
  • Resources: Patent litigation often involves technical experts, discovery, and court proceedings. Make sure your attorney’s firm has the capacity to manage the demands of your case.
  • Transparent Terms: A reputable attorney will clearly outline the terms of the contingent fee agreement, including the percentage they will receive and any other potential costs.

Take Action Today

Your patent is more than a piece of paper—it’s a valuable asset that deserves protection. If someone is infringing on your rights, don’t let the cost of enforcement hold you back. A contingent fee arrangement can provide the financial flexibility you need to pursue justice and safeguard your intellectual property.

Ready to explore your options? Contact our firm today for a free consultation. Let’s work together to protect the value of your innovation.

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By Brett Trout
January 17, 2025

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Why Drafting Your Own Provisional Patent Can Be a Risky and Irreparable Mistake

Brett Trout

For inventors, the thrill of creating something new often comes with the desire to protect their innovation. Drafted correctly, provisional patent applications can be a cost-effective and relatively quick way to establish a filing date while giving inventors time to further refine their invention or secure funding. However, many inventors are tempted to draft their own provisional patent applications without consulting an attorney, hoping to save time and money. Sadly, this approach can backfire, leading to disastrous consequences for the protection of your invention.

Here’s why drafting your own provisional patent application is a risky mistake and why working with a qualified patent attorney is critical.

1. What You Leave Out Can Cost You Everything

A provisional patent application must fully describe your invention and any variations or embodiments you wish to protect. If you leave out critical details or fail to fully explain how your invention works, you may inadvertently limit the scope of your protection. Worse yet, if the application is too vague or incomplete, the invention may not qualify for a future non-provisional (regular) patent.

The U.S. Patent and Trademark Office (USPTO) will not examine your provisional application for completeness or enforceability—this only happens when you file the non-provisional application. By the time you realize something is missing, it may be too late to fix the issue, leaving your invention unprotected.

2. Incorrect Wording Can Open Dangerous Loopholes

Patent applications are as much about precise language as they are about technical details. Vague, overly-broad, and overly-narrow language can significantly weaken your application if used incorrectly or without a clear understanding of how patent claims need to be drafted and are interpreted by courts and the USPTO.

Self-drafted provisional patents often lack the rigorous legal phrasing necessary to establish a strong foundation for future protection. Missteps in describing your invention can create gaps that competitors can exploit, potentially allowing them to design around your patent or challenge its validity. Incorrect wording can also limit the scope of any future claims that define the scope of your protection.

3. The Risk of Losing Your Rights to the Public Domain

One of the most devastating outcomes of a poorly drafted provisional patent application is the potential loss of protection altogether. If your application fails to fully disclose your invention, it cannot serve as a valid priority document. This means that when you eventually file your non-provisional application, any information missing from the provisional is treated as if it was never disclosed.

Worse, if you have publicly disclosed or commercialized your invention during the provisional patent’s lifespan, any undisclosed aspects may fall into the public domain. Once they are in the public domain, they can no longer be patented, leaving competitors free to use your innovations for free. 

4. You May Miss the Opportunity to Expand Your Scope

A patent attorney doesn’t just protect the invention as you envision it—they help anticipate future needs and ensure your application covers variations or improvements. Inventors often focus too narrowly on their immediate design, failing to include broader claims that could prevent competitors from designing around their invention and creating similar versions.

When drafting your own provisional application, it’s easy to overlook these strategic elements. An experienced patent attorney, however, can help you identify opportunities to expand the scope of protection to include alternate embodiments, materials, or functions you may not have considered.

5. Saving Money Now Could Cost You More Later

The allure of DIY provisional patents is often rooted in cost savings. While it’s true that filing a provisional patent on your own may reduce upfront expenses, the long-term risks far outweigh the initial savings. Errors in your provisional application can lead to costly litigation, a weakened patent portfolio, or the complete loss of rights to your invention.

In contrast, working with a patent attorney ensures your application is properly drafted, reducing the risk of future complications and maximizing the value of your intellectual property. A well-prepared provisional application is not just a legal document—it’s an investment in the success of your invention and any business relying on that invention.

Conclusion: Protect Your Invention the Right Way

Drafting a provisional patent application may seem straightforward, but the complexities of patent law make it a task best left to professionals. A single mistake—whether it’s an incomplete description, poorly chosen wording, or missed opportunities for broader protection—can jeopardize your invention’s future.

By working with a qualified patent attorney, you gain the peace of mind that your application is complete, accurate, and strategically designed to secure the strongest protection possible. Don’t let the desire to save money or time put your invention at risk. Protect your hard work, innovation, and potential success by doing it right the first time.

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By Brett Trout
January 16, 2025

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Why Securing a Patent Is a Valuable Investment in Your Innovation

Brett Trout

Innovation drives progress. Whether you’re an independent inventor with a groundbreaking idea or a business leader developing cutting-edge technology, your intellectual property (IP) is one of your most valuable assets. Securing a patent not only protects your invention but also provides you with the competitive edge needed to thrive in today’s market.

But navigating the patent process can feel daunting. That’s where we come in. At Brett J. Trout, PC we specialize in making the complex patent process seamless, efficient, and effective for innovators like you.

What Is a Patent and Why Do You Need One?

A patent is a legal document that grants you exclusive rights to your invention for a set period of time. This protection prevents others from making, using, or selling your invention without your permission. Here’s why a patent matters:

  • Safeguard Your Hard Work: You’ve poured time, resources, and expertise into your idea. A patent ensures that your efforts are legally protected against would-be infringers.
  • Attract Investors: A patented invention signals credibility, commitment, and value, often making it easier to secure funding.
  • Gain Market Exclusivity: Patents give you a monopoly on your invention, helping you dominate your market and outpace competitors.

The Patent Process Simplified

For many, the patent process can seem overwhelming. With technical jargon, stringent requirements, and multiple stages of review, it’s easy to feel lost. At Brett J. Trout, PC, we’ve simplified the process into clear, manageable steps:

  1. Free Initial Consultation: We learn about your invention and evaluate its patentability.
  2. Optional Comprehensive Research: At your direction, our team conducts a thorough patent search to ensure your idea is unique.
  3. Drafting the specification: We craft a detailed, robust patent specification tailored to the requirements of the United States Patent and Trademark Office (USPTO).
  4. Drafting the claims: As claims are the most important part of any patent application, we spend extra time honing the scope and patentability of all claims. 
  5. Prosecution and Filing: We handle all correspondence with the USPTO, addressing any questions or objections to secure your patent approval.

Why Choose Brett J. Trout, PC?

  • Expertise You Can Trust: With decades of experience in patent law, we understand the nuances of IP protection across industries.
  • Tailored Solutions: No two inventions are the same, and neither are our strategies. We customize our approach to meet your specific needs.
  • Proven Track Record: We have obtained hundreds of issued patents for innovators across technology, agriculture, engineering, and more.
  • Personalized Service: We’re not just your lawyers; we’re your partners in innovation.

Start Protecting Your Innovation Today

Every successful invention begins with a smart strategy. Don’t leave your intellectual property to chance. Contact me today for a consultation and take the first step toward securing your patent. Together, we can turn your innovation into a protected, marketable asset.

Call us today or fill out our online form to schedule your free consultation. Let’s protect your ideas and drive your success.

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By Brett Trout
January 15, 2025

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FAQ: Everything You Need to Know About Patenting Your Invention

Brett J. Trout

You’ve created a new invention, congratulations! Protecting your idea through a patent is an essential step in safeguarding your intellectual property. Below, I answer some of the most common questions about the patent process to help you understand what’s involved and how to proceed.

1. What is a patent?

A patent is a legal document issued by the U.S. Patent and Trademark Office (USPTO) that grants you the exclusive right to make, use, sell, or distribute your invention for a specific period (typically 20 years from the filing date). This protection ensures others cannot use your idea without permission.

2. What types of patents are there?

There are three main types of patents:

  • Utility Patents: Protect functional inventions, such as machines, processes, or compositions of matter.
  • Design Patents: Protect the unique appearance or design of an object.
  • Plant Patents: Protect new, distinct plant varieties that can be asexually reproduced.

3. How do I know if my invention is patentable?

To be eligible for a patent, your invention must meet the following criteria:

  • Novelty: It must be new and not previously disclosed or publicly known.
  • Non-Obviousness: It cannot be an obvious improvement or combination of existing ideas.
  • Utility: It must have a specific and practical purpose.

Conducting a prior art search (reviewing existing patents and publications) can help determine if your invention meets these requirements. 

4. What is the first step in the patent process?

The first step is to document your invention thoroughly. This includes:

  • A clear description of how it works and what it does.
  • Diagrams, sketches, charts, photographs, or models if applicable.
    Once you document your invention, consult a patent lawyer to discuss the best approach for protecting your invention.

5. Do I need a prototype before applying for a patent?

No, a prototype is not required to file a patent application. However, a prototype may help you determine if your invention actually works, as well as the best way to manufacture it. Whether you have a prototype or not, your patent application must include detailed descriptions and drawings that enable someone skilled in the field to replicate your invention.

6. What is a provisional patent application, and should I file one?

A provisional patent application is a temporary filing that establishes an early filing date for your invention. A provisional patent application will never turn into a patent. To obtain a patent, you must file a nonprovisional (standard) patent application. If you file a nonprovisional patent application within a year of your provisional patent you may be able to claim the earlier date of your provisional patent. The problem is that the date you establish with your provisional application only applies to the information you filed in your provisional patent application. If you leave something out, that something may fall into the public domain before you have a chance to file a nonprovisional patent application. 

7. How long does the patent process take?

The timeline can vary depending on the complexity of your invention and the workload at the USPTO. On average:

  • A provisional patent lasts for 12 months and must be converted into a non-provisional application within that time.
  • It typically takes 18–24 months or longer for the USPTO to review and issue a decision on a non-provisional application.
  • Depending on the complexity of your invention, how well your patent application is drafted, the examiner reviewing your patent, and how many similar inventions are out there, the patent process may take 2-4 years or more.

8. How much does it cost to patent an invention?

Costs can vary widely but generally include:

  • USPTO filing fees: $70–$320 for small entities, depending on the type of patent.
  • Patent lawyer fees: $12,000–$20,000+ over the course of 2-4 years.
  • There are additional fees for issuance, international filings, and maintenance.

9. What is the difference between a patent lawyer and a patent agent?

  • Patent Attorneys: Licensed lawyers who can draft and file patents, provide legal advice, draft contracts and licenses, and represent you in legal disputes.
  • Patent Agents: Individuals who are licensed to practice before the USPTO and can assist with filing and prosecution of patents but cannot provide legal advice or representation in court.

10. What happens after I receive a patent?

Once your patent is granted, you’ll need to:

  • Monitor the market for potential infringement.
  • Pay maintenance fees to keep the patent active (your patent lawyer will assist you with this).
  • Commercialize your invention by manufacturing, licensing, or selling the product.

11. What if I want to patent my invention internationally?

Patent rights are territorial, meaning a U.S. patent only protects your invention within the United States. If you wish to secure international protection, speak with your patent lawyer regarding costs and options. 

12. Can I file a patent myself, or do I need an lawyer?

While it’s possible to file a patent yourself (known as “pro se”), the process is highly technical and complex. Even if you do receive a patent, you may not be aware of critical flaws in the patent until you go to enforce it. A patent lawyer can help:

  • Draft a robust patent application.
  • Avoid common mistakes that can lead to rejection.
  • Maximize the scope of your protection.
  • Produce a patent that will stand up in court. 

13. What should I do if someone infringes on my patent?

If you suspect patent infringement:

  • Gather evidence of the infringement.
  • Consult a patent lawyer to discuss enforcement options, which may include sending a cease-and-desist letter or pursuing litigation.

14. Why should I work with a patent lawyer?

Patent law is intricate, and mistakes in your application can lead to delays or even rejection. A patent lawyer can:

  • Determine the best course of action to achieve your goals.
  • Conduct thorough patent/infringement/field of use searches if needed.
  • Draft clear and enforceable claims.
  • Draft an application that will support those claims and stand up in court. 
  • Navigate USPTO correspondence and appeals.
  • Advise you on the best course of action from filing to enforcement. 

14. Are all patents created equal?

No. If you hired 100 patent lawyers to draft a patent covering your invention, no two of those patents would be the same. They would all have different levels of breadth and defensibility. While the most expensive option is not always the best option the least expensive option is typically one of the worst options. Your patent will only be as good as the patent lawyer who drafted it. Choosing a good patent lawyer can be difficult. Flashy ads often say more about a patent lawyer’s marketing skills than their patent drafting skills. To find a quality patent lawyer who can help you protect your invention look for an experienced lawyer with years of experience not only drafting patents, but it defending those patents in court. Ask a lawyer you know if they know any good patent lawyers. Look for a patent lawyer with a good reputation and a proven track record of helping inventors like you obtain patents.  

Conclusion

Patenting your invention is a vital step in protecting your intellectual property and ensuring your hard work pays off. If you have more questions or need assistance with the patent process, feel free to contact me for a consultation.

Have a question I didn’t cover? Email me, and I’ll be happy to answer!

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By Brett Trout
January 14, 2025

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Patent Office Extends Deadline for Comments on Patents Covering Artificial Intelligence

Brett J. Trout

Back in July, I noted that The United States Patent and Trademark Office (USPTO) had issued its 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence. Among other items, the new guidance strongly suggested that when drafting patent claims that incorporate artificial intelligence, practitioners should take care to incorporate the claimed technology into discrete, definable, and practical outputs that impose meaningful limits on the underlying abstract idea. The guidelines emphasized that simply applying artificial intelligence to a new field is not a patentable invention.

Comments to these new guidelines are coming in fast and furious. So much so that on September 17, 2024, the Patent Office extended the comment period on the new patent subject matter eligibility guidelines until October 16, 2024. The Patent Office extended the deadline to ensure that all stakeholders have a sufficient opportunity to submit comments on the guidance update. The Patent Office also stated that this deadline will not be extended again, so if you have comments to contribute to the guidelines, it is important that you submit them before October 16th.



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By Brett Trout
September 23, 2024

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The Do’s and Don’ts of Using Artificial Intelligence in Your Business

Brett J. Trout

Do:

Familiarize yourself with generative AI 

Understand the risks and benefits of AI

Read the Terms of Service for the AI platform(s) you intend to use

Contact an attorney to create an AI Acceptable Use Policy for your company

Ensure all employees who will be using AI and/or the output of AI read and understand the Acceptable Use Policy, Licenses, and the Terms and Conditions associated with their intended use of a particular AI platform

Use AI to increase productivity

Have concrete goals in mind and adapt AI usage toward those goals

Ensure every employee accessing the AI platform(s) has individually trackable login credentials  

Monitor productivity gains and adjust employee incentives based on the increased productivity

Learn the types of modifications of AI output necessary to claim ownership rights in the modified result

Employ systems and procedures for documenting protectable copyrightable material added to AI-generated material employ systems and procedures for protecting AI-generated trade secret information 

Understand all regulations and policies governing your intended generation and use of AI output 

Don’t:

Create synthetic AI output designed to misrepresent factual information 

Use third-party content without a legal right or written authorization  

Circumvent third-party policies or security features when generating or using AI

Create sexually suggestive or explicit content 

Assume you own any intellectual property rights in unmodified AI output

Use AI outside the limits of your particular AI license

Generate AI output that violates the intellectual property rights of third-parties

Generate AI output that violates the privacy or publicity rights of third-parties

Build tools attractive to children under 13 years of age

Collect data from children under 13 years of age 

Use AI to violate the law

Publish AI output without a human review of the AI output for policy compliance

Use AI to advise third parties on specific legal, financial, or medical matters. 

Make automated decisions based on AI output that affect a third-party’s safety, security, legal status, credit, employment, housing, financial condition, critical infrastructure, essential services, or contractual relations

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By Brett Trout
September 19, 2024

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(UPDATE: Federal Judge Strikes Down New FTC Noncompete Rule) FTC Mandates Employers Send Notices to Current and Former Workers that Their Noncompete Agreements are No Longer Valid

Brett J. Trout

UPDATE 8/21/2024
On August 20, 2024, Judge Ada Brown of the Northern District of Texas granted summary judgment in favor of the pro-business plaintiffs, abolishing the FTC’s Non-Compete Rule, 16 C.F.R. § 910.1-.6, ruling that the new noncompete rule “shall not be enforced or otherwise take effect on September 4, 2024, or thereafter.” 
While this ruling stops the FTC from enforcing the new rule pending appeal, companies are still advised to generate a list of workers with whom they have non-compete agreements and prepare to take the steps below in the event this newest ruling is overturned on appeal 


The new rules
Under new FTC regulations, as of September 4, 2024, employers are: 1) not allowed to enter into noncompete agreements with workers; 2) not allowed to enforce existing noncompete agreements against current and former workers; and 3) required to give notice of non enforcement to all current and former workers covered by noncompete agreements.

No new noncompete agreements

As of September 4, 2024, the FTC prohibits employers from including noncompete language in their employment contracts, employee handbooks, workplace policies, on their websites, etc. This applies to all workers, whether paid or unpaid, without regard to the worker’s title or the worker’s status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person. This new regulation not only prevents employers from forcing workers to sign noncompete agreements, it also prohibits employers from including noncompete language in other agreements or documents. If you are an employer and have not already vetted all of your corporate documents and online presence to remove all aspects of noncompete language you only have a few more weeks to get that accomplished.

No enforcement of existing noncompete agreements

Under the new regulations, the FTC prohibits employers from enforcing, or threatening to enforce, prior noncompete agreements for violations occurring after September 4, 2024. Tw exceptions to the new regulations are that employers will still be able to enforce noncompete agreements against “senior executives” for any breach and against all other workers for breaches occurring prior to September 4, 2024. The FTC defines a senior executive as an employee who earns more than $151,164 annually (annualized base salary plus commissions, performance bonuses, and any other compensation the employee can rely on receiving) and who has the authority to make policy decisions for the entire company.

Notice requirement for existing noncompete clauses

For all current and former workers covered by noncompete language the employer is required, by September 4, 2024, to provide them with clear and conspicuous notice that the worker’s non-compete clause will not be, and cannot legally be, enforced against the worker. The notice must be: 1) hand delivered to the worker; 2) sent via mail to the worker’s last known personal street address; 3)sent via email to an email address belonging to the worker; or 4) by text message to a mobile telephone number belonging to the worker. The following is the model notice language provided by the FTC under the new regulation:

A new rule enforced by the Federal Trade Commission makes it unlawful for us to enforce a non-compete clause. As of [DATE EMPLOYER CHOOSES BUT NO LATER THAN EFFECTIVE DATE OF THE FINAL RULE], [EMPLOYER NAME] will not enforce any non-compete clause against you. This means that as of [DATE EMPLOYER CHOOSES BUT NO LATER THAN EFFECTIVE DATE OF THE FINAL RULE]:

  • You may seek or accept a job with any company or any person—even if they compete with [EMPLOYER NAME].
  • You may run your own business—even if it competes with [EMPLOYER NAME].
  • You may compete with [EMPLOYER NAME] following your employment with [EMPLOYER NAME].

The FTC’s new rule does not affect any other terms or conditions of your employment. For more information about the rule, visit ftc.gov/noncompetes. Complete and accurate translations of the notice in certain languages other than English, including Spanish, Chinese, Arabic, Vietnamese, Tagalog, and Korean, are available at ftc.gov/noncompetes

Conclusion

Employers only have a limited amount of time to comport with these new FTC regulations governing noncompete enforcement before September 4, 2024. While it is imperative that employers make plans to accomplish these changes before the deadline, these new regulations may be subject to change. Employers wanting to delay the implantation of these new rules to the last possible moment should therefore monitor the FTC website for any possible changes to the regulations prior to the deadline.

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By Brett Trout
August 19, 2024

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When Do I Need to Talk to a Patent Lawyer?

Brett J. Trout

Sooner rather than later
So you have invented a new product. When is the best time to speak to a patent lawyer? Do you talk to one as soon as you come up with the idea? When you have the prototype made? Once you start manufacturing? The truth is it is never too soon to talk to a patent lawyer. While it is unlikely you will be filing a patent application on simply an idea, it is a good idea to find out the process for obtaining a patent before you disclose your idea to anyone. Once you disclose your idea outside of an attorney/client relationship or non-disclosure agreement you have only 1 year to file your patent application before your invention goes into the public domain. As it typically takes 4-6 weeks to draft a patent application, you want to make sure you do not show up on a patent lawyer’s doorstep the day before your deadline and expect them to draft and file a patent in one day. While it is possible to draft a patent in one day (don’t ask me how I know), it is much better to leave sufficient time for you to go back-and-forth with your patent lawyer over all of the fine details of the patent application, making sure that not only is everything correct, but that the patent application covers everything you need to cover. 

Benefits of early advice
Speaking to a patent lawyer early allows you to budget the time and money required to compete the patent process. It also allows you to make sure any necessary disclosures of the invention, to engineers, suppliers, experts, etc., are done under an non-disclosure agreement in a way that does not start your public domain clock running. A patent lawyer can also help you set up an inventor’s notebook to record the trial and failure process that may come in handy down the road to convince a patent examiner with the United States Patent and Trademark Office that your invention is not simply an unpatentable combination of preexisting parts. Another large benefit of developing an early relationship with a patent lawyer is that they can search for other patents and devices that may be similar to yours. I never like giving a client the bad news that their “invention” has already been patented, but it is much better than giving them that information after they have invested hundreds of thousands of dollars in the idea. 

What can a patent lawyer do for me?   
In addition to outlining timelines and budgets for the patent process a patent lawyer can help you decide what to patent and what not to patent. While patenting all of your inventions is a good idea if money is no object, most companies are looking for a return on any investment, including investments in patenting new technology. It is a good idea to sit down with a patent lawyer early to discuss what inventions you have had in the past, what inventions you currently have, and which inventions you anticipate having in the future. Your patent lawyer should also know something about your particular industry. The more your lawyer knows about your competitors and existing technology, the better they will be at advising you where to focus your intellectual property protection dollar. Knowing a competitor’s best alternative to your invention will assist in drafting a patent that is not easy to circumvent. 

 How do I find a patent lawyer? 
While search engines are good for finding a lot of things online, they are not always the best for finding a patent lawyer. Many times, search engines show you the patent lawyers who spent the most money on online marketing, rather than the best patent lawyer. Another method of finding a patent lawyer is to look at online reviews. Avvo.com and martindale.com both have rating systems to determine your prospective lawyer’s reputation both with clients and colleagues respectively. As for cost, while the best patent lawyers typically charge more than the worst patent lawyers, cost may have more to do with location and overhead than it has to do with the quality of the service they provide. When choosing which patent lawyers to interview, if possible track down other inventors the patent lawyer has helped and ask them for their opinion of the lawyer. Nothing tells you more about the skill of a patent lawyer better than a former client’s honest assessment of that lawyer’s actual performance. When searching for a patent lawyer is also important that you seek out the individual lawyer, rather than a law firm. A law firm may have a great rating, but unless you are actually working with one of the layers who helped earn that reputation, you could be in for trouble. A little-known fact about patents and patent lawyers is that if you hired fifty different patent lawyers to draft a patent covering your invention no two of those patents would be the same. They would all have different scopes of protection, making them either easier or harder to circumvent. A large part of what makes a patent good or bad is how well the inventor and patent lawyer are able to communicate ideas with one another and address inaccuracies.

Communication is key
Even if you were to run across the best patent lawyer in the world, that patent lawyer may still not be the right patent lawyer for you. The best patent lawyer for you will be a lawyer with whom you have good chemistry. Once you have your list of potential patent lawyers narrowed down, talk to them. Get a feel for how well they communicate with you and how well they understand your needs. Selecting a patent lawyer with whom you communicate well is one of the best things you can do to increase the odds your patent will give you the maximum amount of protection at the lowest cost.  

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Are You Allowed to Use Artificial Intelligence in the Practice of Law?

Brett J. Trout

ABA Formal Opinion 512

The American Bar Association has just released new Formal Opinion 512 covering the use of artificial intelligence (AI) for lawyers. Over the next decade AI will move from a risky endeavor to a necessary tool in the arsenal of all of the best attorneys. Given that your use of AI as an attorney is a matter of “when” rather than “if,” it is important to inform yourself now of the ethical rules concerning the unfathomably valuable resource that is AI. The fifteen-page opinion covers seven areas of concern: competence; confidentiality; communication; supervision, frivolousness; and billing. 

Competence


The ABA states that while you do not have to become an AI expert to use AI in your practice, you must understand the benefits and risks of the particular AI system you intend to use.  Alternatively, you may enlist the assistance of someone else who has such knowledge. Given the rapidly advancing nature of AI, you are also required to keep up to date on changes to the system you are using. The primary danger is AI’s known propensity to produce inaccurate, misleading, and/or outright false information. AI may even generate great quotes from fake case citations for cases that do not exist. It is therefore your job as an attorney to closely vet all AI-generated output you intend to use in your practice. The degree of vetting required will vary depending on how you intend to use the output. If you are only using the output to generate potential ideas, the AI output may not require any vetting at all. If you are using the AI-generated content to write a brief to be filed with the court, the output will require the highest form of vetting to ensure the brief is complete, accurate, and compelling. AI-generated content can be intoxicatingly on point, but if you cannot absolutely verify its accuracy, you are putting your clients and your practice at risk by using it. Failure to properly vet AI-generated content runs the risk of violating ABA Model Rules of Professional Conduct 1.1. 

Confidentiality

The biggest ethical trap for lawyers using AI is the disclosure of confidential client information. While all lawyers are aware of the duty under ABA Model Rules of Professional Conduct 1.6 to maintain client confidences, many are unaware that when you input information into an AI system that system uses that input to train itself to generate future output. For instance, if you input a proposed confidential settlement agreement into an AI system and asked it to improve the agreement, the system would now have that initial agreement and be able to provide it to others asking the AI system to generate a settlement agreement. That output could easily lead to the disclosure of identifiable client confidences that could lead to you getting slapped with an ethical violation. Even if the AI system never publicly discloses any of the settlement agreement, the fact that it could, could itself put you on the wrong side of an ethics inquiry.

To address this issue it is possible to use a “closed” AI system. A closed AI system uses a trained AI system, but is not accessible by anyone but authorized users. Many law firms implement such systems to address this exact issue, ensuring that nothing input into the system is publicly accessible. It is still important to note, however, that even though the input in such systems is not publicly accessible, it is still available as output to other attorneys within the firm. For instance, if you input a brief with a novel legal argument into your firm’s internal AI-system, that same system may output that same novel legal argument to a colleague with a similar legal issue. You may then find your legal argument getting shut down in court before you even had the chance to flesh it out or argue it yourself. Accordingly, even with these types of internal AI systems great care must be taken to make sure that all output is vetted to remove any material that could possibly lead to the revelation of client confidences by unwitting colleagues. It is also incumbent upon any attorney using any AI system that the attorney be familiar with the security features, information retention policies, terms of use, privacy policy, and other contractual terms and policies governing use of the system. 

Communication

To comport with ABA Model Rules of Professional Conduct 1.6 lawyers have a duty to disclose use of AI to clients. First, if a client ever asks about the lawyer’s use of AI, the lawyer must be completely forthcoming. Second, before ever inputting any client confidential information into an AI system of any type the lawyer must obtain prior, informed consent from the client acknowledging that the client understands the particular risks and benefits involved. Third, lawyers must also disclose to clients other uses of AI by the attorney depending on the scope of the representation, the client’s needs and expectations, the criticality of the use in the representation, and the sensitivity of the information. On one end, if you use AI to generate potential trial outcomes and specific damage awards, which the client will use to decide whether or not to file suit, you are obligated to reveal that use of AI to the client.  On the other end, if you use AI to increase the efficiently of ordering office supplies that you use to perform general legal work, you are likely not required to disclose that use to your client. Regardless though of whether you are required to disclose a particular use of AI with your client, best practices dictate that the more accurately and comprehensively disclose your use of AI with your client the better and more productive the relationship will be for both you and your client. 

Supervision

You are not only obligated to follow all of these rules. You are also obligated to ensure that all attorneys and non-attorneys in your firm under your supervision follow these rules as well. 

Frivolousness

This section of the opinion reminds attorneys that courts have and will continue to reprimand attorneys who submit documents to the court that contain AI hallucinations, including fake cases, citations, and facts. If you do not vet all AI-output with a fine-tooth comb before submitting it to the court, it is only a matter of time before you find yourself reprimanded by the court and explaining to your state’s ethics board why you did not follow this advice. 

Billing

If you bill by the hour and it takes you an average of ten hours to draft a brief you cannot charge ten hours if you use AI to cut your brief-writing time down to two hours. You cannot only bill hourly for the hours you actually worked. If you bill using flat fees or contingency arrangements you may be able to continue billing at your current rates even if AI significantly reduces the hours you spend on a particular project. No matter what though, any fee charged that involved little or no work on your behalf is an unreasonable fee. While you may charge a client directly for the cost of AI, there are several caveats. You must agree to such fees upfront, you cannot charge for AI that is wholly-integrated into the general services provided by the lawyer i.e. (AI grammar correction in word processing systems), you cannot charge more than the reasonable cost of the system to the attorney, and none of the AI charges may be duplicative of other charges. You also cannot charge clients for the time you spend getting up to speed with the use of general AI systems that you intend to use for other clients. If a client requests the use of a new specific AI tool which the lawyer must spend time learning and/or the AI tool has a per use cost, the lawyer may bill the client for those items provided the client has agreed upfront in writing. 

Conclusion

The bottom line is that there should be no surprises in this new opinion. The opinion merely applies the existing rules to the current burgeoning technology. Stay apprised of the current ethical rules and the technology you are using in your practice and the application of the rules to the technology should not pose any monumental hurdles.   

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By Brett Trout
August 9, 2024

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