How A Patent Lawyer Can Protect Your Invention

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How A Patent Lawyer Can Protect Your InventionA good patent lawyer will be able to help you determine whether your invention can be protected by registration with the U.S. Patent & Trademark Office (USPTO). As part of the process, you’ll learn the type of patent you’ll want to get to for your intellectual property.

What Is A U.S. Patent?

If the USPTO ultimately determines your invention a “new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof,” then the federal government will grant you the exclusive right to make, use or sell your intellectual property for 14 to 20 years, depending upon the type of patent. If others want to legally use your invention during that time, they have to pay you for the privilege (license) of doing so.

Related Article: Beware of Invention Promotion Companies

What About A U.S. Provisional Patent?

Like a unicorn, that really doesn’t exist. However, there are some circumstances justifying the need to file a provisional patent application (PPA) for your invention with the USPTO first, especially as the U.S. has now adopted a “First to File” (and no longer a “First to Invent”) patent system, in order to establish priority.

Note that if one files a PPA, it must be “converted” to a regular, non-provisional application within 12 months of filing the PPA, else the PPA is automatically deemed abandoned, i.e. you’ll lose the benefits of filing the provisional app and be statutorily barred from filing the non-provisional application thereafter.
Although a provisional patent does not exist (just a PPA), there are 3 types of patents the USPTO can issue depending upon what you’ve invented. Your Registered Patent Attorney will be able to identify the kind of patent you should seek and prepare the application for the USPTO to examine.

This may be the most critical part of a patent: the patent application!

It’s the properly drafted application that can maximize your property and legal rights.

Patent types include:

• Utility Patents
• Design Patents
• Plant Patents

Most patents are utility patents. In rare circumstances, a proposed invention may qualify for more than one type of patent, and/or qualify for copyright protection and/or trademark protection. A Registered Patent Attorney can help.about intellectual property lawyer herbert joe

What Is A Registered Patent Attorney?

Not all lawyers can practice patent law before the USPTO. An attorney must pass a very difficult patent bar exam in order to become a Registered Patent Attorney (RPA). Although there are 1.3 million lawyers in the United States, only about 2% are Patent Attorneys registered with the USPTO.

Related Article: Intellectual Property Lawyer Herbert Joe

The average length of time for a patent to be approved is almost 30 months from filing, but the actual time can vary greatly depending on many factors, like the complexity of the proposed invention.

What If Your Invention Doesn’t Qualify For A Patent?

You may learn from your patent lawyer or the USPTO that your intellectual property can’t be protected by a patent.

If that happens, your attorney can advise you on other possible ways to protect your IP, including steps to shield it, for example, as a trade secret. In other words, you still may be able to profit from your invention without having a patent for it.
What About Patent InfringementIf you already have an enforceable patent but someone is using a part of your invention without your permission, you should seek legal help from a registered patent attorney (RPA) immediately. Your patent lawyer may be able to enforce your exclusive rights via a court order (an injunction) to stop the infringement, force the infringer to pay you royalties and/or award you damages.

On the other hand, if you’ve been accused of infringing someone else’s intellectual property, you should immediately seek legal advice, preferably from an RPA, as one may be subject to the additional damages (up to three times compensatory damages) from “willful infringement.”

What About Trademarks?

Trademarks can be the most important asset of a company, e.g., one study determined that trademarks make up about 1/3 of corporate value. So, coming up with and then protecting your distinguishing word, logo, shape, sign, expression, etc., that distinguishes your products or services from others, may be a necessary and invaluable business decision.

Can A Patent Lawyer Also Help You With Copyrights?

Copyrights can be invaluable intellectual property for the creator of an original artistic or literary work, e.g., a movie, a song, a book, computer programs, photos, etc. Copyrights include the exclusive right to make, publish and sell your copyrighted property. There are distinct advantages to timely federally registering your copyright.

A good Registered Patent Attorney should be able to assist you with all of your Intellectual Property needs.

The Great Website Photos Shakedown That’s Perfectly Legal

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stock photograhy copyright infringementEver found a fantastic photo that you really wanted to post on your website?

Unless the pic is in the public domain or shared with a copyleft license (e.g. Creative Commons), chances are there’s a copyright owner for the photo whose permission (preferably in writing) you’re going to need to obtain before using the pic on your site.

But how do you track down the owner of the pic on the Internet? You can use a service like TinEye.com as a starting point but that’s no guarantee you’ll be able to find the true copyright owner.

Because it is so difficult to find the copyright owners for many photos online, many website owners mistakenly use the pics on their own sites without permission.

And that’s where the photo copyright infringement shakedown comes into play.

Here’s what happens…

There are professional photographers and stock photo companies that make most of their money by threatening shakedown lawsuits for copyright infringement against website owners who use their pics without permission. If you are using one of their photos on your site without paying a licensing fee, you’re likely to receive an email or a snail mail letter claiming infringement.

They will demand a fee of $3,000 to $10,000 to settle their claim of infringement. If you refuse to pay, they will threaten to sue you for copyright infringement and seek $150,000 per infringement plus payment of their legal fees and court costs.

The goal of this demand is to shake you down for thousands of dollars because it is still a lot less expensive than being sued and likely losing.

Frankly, it’s legal but a sleazy way of doing business.

So what should you do to avoid this type of copyright infringement shakedown in the first place?

Before using a photo on your site, be sure to ensure that:

(1) the pic is in the public domain,
(2) has a copyleft license that you comply with; or
(3) you get permission from the copyright owner to use it.

The easiest way to get permission is to pay a licensing fee to a reputable stock photo agency for use of the pic. The fee you will pay will typically depend upon the resolution of the photo and where you intend to use the pic. For example, a low resolution image for use on a blog will cost less than a high resolution image you plan to include in printed marketing materials.

Where possible, avoid doing business with those who focus on shakedown threats instead of licensing images as their way of making money online. Don’t reward bad behavior that preys upon mistakes.

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Your Twitter Tweets: Who Owns Them?

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Twitter has long taken the position that you own your tweets. When you tweet, you’re giving Twitter a license to distribute your content via its services.

Just because you own the content you tweet doesn’t mean that Twitter is going to protect you if a court wants copies of what you’ve tweeted. Until recently, Twitter took the position that because you own the content, the company didn’t have to cooperate with court requests for copies of your tweets. If you closed your Twitter account, that was the end of it.

However, courts take a different view of the matter. Now Twitter has caved on the issue and has just turned over tweets to a New York court without the consent of the user who tweeted the content.

This is consistent with Twitter’s Terms of Service that provides in relevant part…

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

In other words, just because you may own the content you tweet doesn’t mean you get final say on who gets copies of that content. And if a court wants copies of what you’ve tweeted, Twitter’s policy appears to be full cooperation even if that hurts you. Think twice before tweeting something that could come back to haunt you in legal proceedings.

Pirate Bay Co-Founder Arrested in Cambodia

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With human trafficking, genocide, terrorism, etc., you have to wonder about the misplaced priorities that have targeted Pirate Bay co-founder Gottfrid Svartholm Warg for copyright infringement. Yes, the Cambodian government has arrested him with plans to extradite to Sweden so that prison time can be served.

What’s intriguing is that there’s no Swedish-Cambodian extradition treaty in place. Makes you wonder if a diplomatic carrot (bribe) was offered by the Swedes to bring this intellectual property rights menace to justice.

To be sure, protection of copyrights and other intellectual property is important. But in the grand scheme of things, this is hitting a fly with a sledge hammer…and ignoring the fact there are billions more pirates around the planet. It’s an example of silliness rather than copyright protection.

Copyright Infringement Liability and Your IP Address

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Are people held accountable for everything that happens at their IP address including copyright infringement?

For the several years the internet has served an active role in people’s lives, controversy has existed about whether or not individuals maintain responsibility for everything that happens at their IP address, such as copyright infringement.

As prosecutors, mainstream media companies, and the adult film industry all have an interest in preventing copyright infringement or illegal actions taken over the internet, controversy exists about whether their analysis of a person’s IP address is sufficient to establish liability. For example, when elderly grandmothers face liability for child pornography reported as accessed by the grandmother’s IP address, many question whether the IP address alone tells the full story about the content and its viewers. Concerns particularly have arisen regarding the ability companies and prosecutors have to obtain IP address information, and then file suits against owners of the addresses.

How do companies and prosecutors gain information about individuals’ IP addresses for copyright infringement cases?

Typically, companies hire law firms or others to monitor sites where illegal activities prevail. Sites such as BitTorrent, where copyright violations thrive, receive particular scrutiny and provide companies with an opportunity to examine illegal content and determine which IP address accesses that illegal information. Once a particular IP address displays illegal activity, the observing law firms can then subpoena internet service providers like AT&T to provide the identity and physical address the owners of each IP address.

Once a law firm knows the identity of an individual whose IP address has registered copyright infringement or other illegal activities, a suit or prosecutor can take place. Typically criminal matters such as the downloading of child pornography require additional evidence of criminality for a conviction to take place. In civil matters, however, alleged internet pirates essentially have to prove themselves innocent by suggesting alternate ways in which the illegal activity could have occurred.

What problems exist when holding people accountable for copyright infringement and other illegal actions that happens at their IP address?

Oftentimes, IP addresses do not adequately indicate which specific individual has committed illegal actions. Though IP address give plaintiffs and prosecutors a big clue as to which computer or network has committed the violation, pinning that liability on a particular individual comes under some controversy. Situations could, and almost certainly do exist, where an individual who owns an IP address was not the specific individual who committed any illegal internet activities.

For example, many people share computers in networks with other individuals. In such a situation, it would be unfair to pin liability on a specific IP address owner regardless of any other information indicating his or her guilt. Other situations such as computers without password protection, and computer networks that can be hacked into or otherwise used by outside individuals make pinning copyright infringement liability on a specific IP address holder questionable to many.