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.

Brand Hijacking: Using Your Competitor’s Name In Google AdWords

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brand hijacking pay-per-click

Should brand hijacking be allowed in PPC campaigns?

What’s happening with Brand Hijacking?

Many have become both aware and concerned that Google AdWords and other pay-per-click (PCC) allows advertisers to take advantage of the names and identities of their competitors through brand hijacking.

For example, Google AdWords allows advertisers to promote their website whenever a Google search includes words the advertiser chooses. As Google pictured it, a boot salesman could participate in AdWords by selecting words like “western boots” which, if searched by a Google user, would show the boot salesman’s website. Though pictured by Google representatives as a way to generate a profit for Google while directing specific users to the websites that want them, business competitors have taken advantage of Google’s program in a controversial way.

What do courts say about the legality of brand hijacking?

Instead of choosing a phrase like ‘western boots’ to generate traffic to their website, some PPC users have chosen the names, including trademarks, of their competitors to generate traffic. For example, lawyers have secured the names of their competitors in PPC campaigns.  In this way, an Internet user attempting to find a specific attorney will have a second competing attorney’s name appear in advertising because that second attorney tagged the first attorney’s name in the pay-per-click campaign.

Essentially, this piggybacking on more successful or better known identities has spawned controversy because some lawyers have claimed that they have lost business as a result of PPC advertising allowing their business competitors to commandeer clients from them who specifically type in their name.

Claiming that individuals have the right to use, and prevent the misuse of their names, the issue was litigated in a Wisconsin court recently. While the court recognized that individuals do have some ‘right of publicity’ to preserve the integrity of their names, the court found that freedom of speech guarantees extend to business people using the names of their competitors in Google’s AdwWords program.

What does this type of brand hijacking mean for the future of the internet?

While future brand hijacking litigation will determine what the internet will look like in regard to PPC campaigns, if courts use the same logic the Wisconsin court did in preserving freedom of speech, U.S.-based businesses will likely be freely able to use their competitors’ names to generate website views. This has the potential to materially devalue brands and related trademarks.

Perhaps such freedom will enable newcomers to different professions to advertise and compete in a more even-keeled manner with established businesses. However, opponents of pay-per-click (PPC) being used in such a way have strong arguments on their side in favor of an individual’s right to control the use and misuse of his or her very name in brand hijacking campaigns.

Brands Could Replace Dot Com Domain Names

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domain names brands

dot brand domain names are costly and a legal headache

Why are there so few domain names to choose from?

As it is now, few domain “good” dot com names exist for companies and individuals to choose from when creating a website because most of these .com domain names have been registered by others online. In other words, the .com suffix has been mined quite heavily by others, both legit businesses and cyber squatters. Lesser suffixes, like .me, .tv, etc. simply aren’t as attractive because their .com counterparts are already being used and most users surf the web based on the expectation that .com is going to be part of the domain name for a business.

However, an organization meeting in Singapore called the Internet Corporation for Assigned Names and Numbers (ICANN) is expected to change everything to allow brands and even the most ridiculous words to be utilized as a domain name suffix.

How will brands be able to replace dot com domain names?

ICANN regulates and coordinates internet names, and pending the success of its board meeting in Singapore, it will probably allow brand names to replace dot com and the other traditional domain names in existence at this point. This new possibility means big things for major corporations and individuals as more creativity and advertising possibilities could transform the internet.

Though previously discussed, the Singapore meeting is the first serious attempt by ICANN to allow alternate domain names. The change has been speculated for several years now, but the confluence of users demanding more creative control over their websites, and major corporations desiring more advertising avenues has finally resulted in action.

What will the future of the internet be like if brand names could replace dot com domain names?

If the new change gets approved, instead of ending virtually every website with the domain name ‘dot com,’ companies could use their own brand name to end website addresses. For example, accessing the Coca Cola websites would probably consist of ending dot coke to an address. Creative minds could set up websites such as whattodoin.dallas or didyouseethat.movie to give their websites a pizzazz missing when dot com dominated the internet.

Use of new domain names might, however, prove prohibitively expensive for all except the wealthiest or the major international corporations. The right to establish a .coke or .movie is expected to cost potential purchasers $200,000 or more. While all would benefit from the increased creativity allowed to be both expressed and viewed across the internet, few except the large companies could at first afford the initial transition away from the dot com phenomenon for which the internet has thus far been known.

Will Dot Brand Domains Names Fail?

There have been plenty of attempts to expand beyond dot com but so far .com, .edu, and .org remain the bread-and-butter for those online. Although .brand domains have appeal, the high costs make it unlikely these will become as popular as .com. And it’s hard to fathom why a large company would pay the extra fees for its .brand unless those registration costs were less than the cost of defending existing registered trademarks for the brand against anyone dumb enough to register the .brand as a squatter or competitor. From an intellectual property attorney’s standpoint, this would be a bonanza in legal fees as the large companies fight over the rights to .brand names.

For the near future, dot com domain names will remain top dog because they’re inexpensive to acquire and Internet users are conditioned to look for them.

What the app war means to you

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internet lawyer apps

Your Internet lawyer can help you with computer apps

This is something to talk about with your Internet lawyer if you’re dealing in computer applications or have trademark and service mark questions.

There’s an app war going on right now and how it turns out can affect what you’ll be able to do with your business online.

A few years ago, Apple applied for a registered trademark for the term “App Store.” When you hear the term “App Store,” you’re supposed to only think of iPhone, iPad, and iSteveJobs.

Microsoft and Amazon disagree with that meaning.

Apple is going after Amazon for using the term “App Store” to sell Google Android applications.

Microsoft is arguing that Apple can’t own the term because it is generic, i.e. the “App” is just slang for the generic term “application.”

If Microsoft and Amazon are correct, Apple can’t prevent anyone from using “App” anymore than it can stop you from using the generic term “store.”

But this is the type of Internet law issue that affects you when you do business online. Using a simple term that everyone uses online could actually get you hit with nastygrams from Apple’s attorneys. And if you get one, you’ll want to contact your Internet lawyer right away.

You can always reduce your risk of getting sued by taking simple steps to protect yourself and what you own.

To your online success!

-Mike the Internet lawyer

Website attorney: Protecting your Internet goats

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website attorney trade dress goatAs a website attorney and entrepreneur, I find that you can learn from offline businesses too. There’s a Wisconsin restaurant that’s protected its unique selling proposition (USP)…and it isn’t the pickled herring you can order off the menu.

You eat at the restaurant so you can watch goats grazing on its grass-covered roof.

What the restaurant owner did to protect his USP was register the trade dress (the restaurant’s goats-on-a-roof theme) so that others can’t compete without paying a licensing fee to put goats on top of their restaurants.

And if someone tries to steal the concept without paying, the restaurant’s lawyers stop the infringement from occurring.

You’ve got your particular USP (cyber-goats?) that attracts visitors to your website. If you’re not protecting the intellectual property (trademarks, service marks, trade dress, copyrights, etc.), you’re giving away your edge to your competitors who will copy you. You can do this yourself (the hard way) or have your website attorney do the work for you.

Protect your website’s goats and profit by doing so.

To your online success!

-Mike the Website attorney