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   Lots of "Patent Professionals" Advice...
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   Author  Topic: Lots of "Patent Professionals" Advice...  (Read 4212 times)
Isaac
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Re: Lots of "Patent Professionals" Advic
« Reply #15 on: Sep 10th, 2005, 8:45am »
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on Sep 10th, 2005, 2:36am, JimIvey; wrote:
Y'know, some business people seem to say "intellectual property" when they really mean "intellectual capital."  Of course, the two are not synonymous.
 
And, to be clear, IP includes patents, trademarks, copyrights, trade secrets, and to some degree unfair competition.  As far as I know, those are the only recognized property rights in intangible assets.  In the examples discussed so far, copyrights and trademarks aren't directly applicable for obvious reasons.
 
Regards.

 
Yes I think the tem "intellectual capital" does a great job of distinguishing between protected and protectable ideas and unprotected ones.   Patents, copyrights, and trademarks are unique exceptions to the principle that competition is an essential part of a free market.   Even trade secrets are not truly an exception  because they are only protected against behavior that is considered unethical anyway.
 
The copying of unprotected ideas and inventions is not unethical behavior and copyists who indulge in such behavior are not thieves and scoundrels.  Instead they are capitalist serving the role of making sure the public is not price gouged.
 
That said, I think you're summary about intangible property was a little over zealous.  There are other types of intangible property other than the intellectual property type (for example security interests, stock options, maybe even rights to publicity if we stretch things a bit)
« Last Edit: Sep 10th, 2005, 8:48am by Isaac » IP Logged

Isaac
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Re: Lots of "Patent Professionals" Advic
« Reply #16 on: Sep 11th, 2005, 6:10am »
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on Sep 9th, 2005, 5:12pm, JimIvey wrote:
This is the last time I'll repeat myself.  I've answered all your questions to date.  If you have more questions, go back and read what I've already written.
 
I'm not quibbling.  Quite simply, "intellectual property" is a property right enforceable in court -- any, not just the Supreme Court.  An "idea" is -- quite simply and clearly -- not.  I have no personal stake in this -- this is the law, pure and simple.  If you think ideas, in and of themselves, ought to be protected, talk to your congressperson and see if they'll work to change the law.
 
None of that will protect you anywhere.  There's no such thing as a "provisional patent" and proving you invented first is meaningless outside an interference proceeding the in the USPTO.  "Good enough?"  Well, it's not better than nothing at all, but perhaps nothing at all is "good enough" for your purposes.
 
I'm convinced or vested in no such myth/belief.  But when you say you're "protected", what exactly do you mean?  And, how many of your cartoonish villians do you need to destroy the economic viability of your business?
 
In addition, you "guess" at 1 in 120.  How many times have you approached someone about a licensing deal?  What's the size of your sample for your statistical estimate?
 
Of my clients, I'd say about half a dozen or a little more had tried that route.  I don't think any have succeeded, but one might be getting some traction now.  Just meeting and greeting, I've probably met and spoken face-to-face with about a dozen more.  I think I've met one or two how have had success doing that -- with and without patents (but with no less than a trade secret).
 
My own very rough estimate is that, out of 100 potential licensees, you'd find at most five and perhaps zero licensees and at least 10 and perhaps as many as 25 of your cartoonish villians.  The vast majority will simply tell you "don't call us; we'll call you."  
 
A reasonably common question from potential licensees is "what kind of protection can you offer me?  I don't want to pay for this and then find my competitor doing the same thing the next day."  I'd say half or more ask that.  Well, what's your answer?
 
"Your business" as in my business?  Nope.  I don't rely on volume and I'm not even really marketing here.  I can only write 1-2 patent applications per month, and I'm quite backed up at the moment.
 
And, perhaps this time you'll read this:  not all inventions warrant a patent application.
 
Vanity is entirely irrelevant (at least it ought to be).  I don't tell people whether to get a patent, only how to.  Whether to get a patent is purely a business decision and not a legal one.  My job is to tell people what sort of legal rights they can acquire, for how much, and with what sort of odds of success.  Whether that is justified by the potential market is entirely a business decision to be made by the client.
 
Let me say this one more time before forever holding my peace:   not all inventions warrant a patent application.
 
However, your assumption that the deal isn't at all affected by the presence of a patent is not a fair one.
 
For what it's worth, that's a good approach that most inventors fail at.  However, without more (at least NDAs or a plan to show and tell very little -- focusing on results and not on the hows and whys -- without an NDA), you may be risking more than necessary to get the deal done.
 
Regards.

 
Jim,
I was under the impression this was a forum open to and in fact inviting lay-public input...
 
I did not realize it was ONLY for attorneys to bat around arcane legal distinctions.  My bad.
 
Yes, "good enough," is well, good enough for MY purposes.  My "argument" here is as it has been from the start, unchanged: SOME products NEED patenting.  MOST do not.  Most require only licensing and the "protection" offered by being first to market.
 
As patent attorney, of COURSE you have a vested interest in promoting the idea that everything from a manual-digital dental hygeine device (toothpick) to that engine that runs on water "needs" patent protection.
 
If there is no such thing as a "provisional patent" why is obtaining one the first step in the patent process?
 
I don't recall arguing against trademarking.  
 
MY "cartoonish" villains are of your making, not mine.  Or are you now denying the patent's protection from such villains?  Who ELSE would you be protecting a product from?  Another basement inventor who is as likely as you to encounter the same roadblocks in the very likely scenario that you are not protecting the next reversible socket wrench?
 
Indeed, many/most manufacturer's ANY "inventor" with or without a patent is likely to say, "don't call us, we'll call you."  Popeil had exactly this problem.  
 
In an HONEST  (non-lawyer) assessment of your clients' products, how many of them ARE the next one-handed, reversible socket wrench?  50%? 75%? 100%?
 
Best,
Mike
 
 
 
 
 
 
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ValueProducts
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Re: Lots of "Patent Professionals" Advic
« Reply #17 on: Sep 11th, 2005, 6:21am »
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on Sep 10th, 2005, 8:45am, Isaac Clark wrote:

 
Yes I think the tem "intellectual capital" does a great job of distinguishing between protected and protectable ideas and unprotected ones.   Patents, copyrights, and trademarks are unique exceptions to the principle that competition is an essential part of a free market.   Even trade secrets are not truly an exception  because they are only protected against behavior that is considered unethical anyway.
 
The copying of unprotected ideas and inventions is not unethical behavior and copyists who indulge in such behavior are not thieves and scoundrels.  Instead they are capitalist serving the role of making sure the public is not price gouged.
 
That said, I think you're summary about intangible property was a little over zealous.  There are other types of intangible property other than the intellectual property type (for example security interests, stock options, maybe even rights to publicity if we stretch things a bit)

 
All good points.  
 
At issue here, however, is not whether in SOME cases patenting is essential, but what OTHER means of protection are available.
 
Jim, a patent attorney, is vested in promoting patenting as the ONLY means of protections.  And surely a patent is about as ironclad (in No. America, only) as you can get.  And perhaps for Jim's clientelle a patent is not only always necessary but also the best business move.  He perhaps represents those inventing those engines that run on water who therefore not only NEED a patent, but are actually inventing new ideas as opposed to developing new consumer products and whose inventions therefore on a cost-to-return bases warrant the expenditures of time and capital required to obtain a pre-production patent.
 
Fine.
 
I maintain (and no, I don't have the stats Jim demands) that MOST "inventors" are actualy product developers, you know, adding a widget or sproket to existing products to enhance them, coming up with new and exciting ways to seal a bag of corn chips, putting thumb holes in paper plates, etc.  Now, to be sure SOME such products are innovative enough to demand patenting. I am reminded of those paper coffee cup sleeves that kept you from burning your fingers.  Brilliant.  And patented, as I recall.  Also now widely copied by about a zillion Chinese and Taiwanese and Malaysian companies and sold with wild abandon across No. America.  Yes, the originator made a fortune.  
 
But again, I am not necessarily (the point Jim seems determined to ignore) talking about something so startlingly new and innovative that it REQUIRES such ironclad (guffaw!) protection, but rather the geegaw-gadget market.
 
Jim, would insist on patenting toenail clipping....it's what he does for a living.  I don't expect anything else from him.  But the primary question remains: does EVERYTHING need a patent?
 
My gut (sorry, no stats issuing forth from those quarters!) tells me no.  
 
Best,
Mike
 
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Isaac
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Re: Lots of "Patent Professionals" Advic
« Reply #18 on: Sep 11th, 2005, 7:16am »
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I generally avoid online discussions of this type because they often degenerate into the type of name calling and motive impuning that discredits all of the participants.  This one discussion did not start there, but it seems to be heading there.
 
I'm going to touch on some of the less heated parts of the discussion as probably my last post to this topic.  
 
Practitioners avoid using the term "provisional patent" in preference to terms like "provisional application for a patent" because the application actually generates no rights other than a preservation of a priority date for a future patent application.  I think the distinction is important because the purpose and effect of provisional applications is often misunderstood.  In fact some lay critics have accused practitioners of blurring the distinction between provisional applications and patents as a means of parting inventors from their money.
 
IMO someone attempting to license a product that cannot be protected against competitors faces an uphill battle.  You may be able to solve the problem of having Sears rip you off by using an NDA, but Sears cannot stop Snap On from copying the tool.   Such a situation makes a royalty deal less attractive.  In cases where the details can be kept secret even after the product is public, potential ripoffs by the competition may be less of an issue.
 
That's not to say that the numbers might not work out so that a company does not care about being copied in the market place as long as it is first to market and can make the initial loot.   You suggested that such a situation occurs some of the time, and in your most recent posts you assert that it is the case most of the time.   Maybe the major point of the disagreement here is about the frequency of which your strategy is usable.
 
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Isaac
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Re: Lots of "Patent Professionals" Advic
« Reply #19 on: Sep 11th, 2005, 7:25am »
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Mike -
 
Are you perhaps confusing (a) working with a manufacturer to produce a product on a contract basis with (b) licensing your invention to a business?
 
In scenario (a) - contract manufacturing - you are simply paying for a service.  You and the manufacturer negotiate product specifications, delivery dates, costs, etc.  The manufacturer may provide other services as well.  But the key is that you are taking most of the risk; the manufacturer is getting paid by the piece.  Regarding patents, manufacturer's only concern would be to not infringe a third party's patent.
 
Scenario (b) - licensing your invention - is a very different situation.  If you approached me with your wonderful idea and offered me a license, one of my first questions would be "What is it that you want me to pay for?  If I sign this contract, what am I getting in return?"  It's not clear to me why I should pay anything unless you have some ability to block me from independently pursuing the idea.  
 
There are certainly methods of protection other than patents - for example - your idea requires a difficult to obtain material.  Perhaps you have family back in Someplaceinasiastan that can supply the needed quality yak fur.  Without the personal contacts there is no way I can obtain the critical material.  In that case licensing the idea is actually just part of the deal; the other part is a material supply agreement.  
 
A different scenario, related to licensing, is selling your services as a consultant or a regular employee.  If you show me your portfolio of brilliant ideas and offer to come work for me, that might be something I'd consider.
 
Wishing you success,
 
 
Richard Tanzer
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Richard Tanzer
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