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Patents, Trademarks, Copyrights, Trade Secrets Protect Your Invention!

Written by: Geoff Ficke

Patent numbers are issued sequentially, beginning with the number one. Patent number one was issued to Samuel Hopkins on July 31,1790. It took 75 years for the United States Patent and Trademark Office (USPTO) to issue patent number 1,000,000. Patent number 7,000,000 was issued February 14, 2006. It took only seven years for the USPTO to move from issuance of patent number 6,000,000 to 7,000,000.

What does this mean? Simply, there is more creativity now that at any time in history. The old saw that “there is nothing new” is completely wrong. There has never been so many people and entities creating novel, unique products, technology and services, and so driven to commercialize these inventions. More patents and entrepreneurs attempting to market their products is indicative that there is more competition for successful placement.

It is essential that entrepreneur’s protect their inventions. This is a form of insurance. To attempt to market an invention without covering the work with the shield of patent, trademark, copyright or trade secret protection indicates a frivolous approach that will not succeed. Investors, licensees, and investors demand the protection that these intellectual property products afford. Even if the entrepreneur is going to self-market the invention, protection is essential in order to fend off competition.

A pharmacist in Atlanta, at the beginning of the 20th century, created a formula for syrup that he sold at the soda fountain in his pharmacy. John Pemberton mixed the syrup with soda water and sold drinks of the concoction as a wellness beverage to cure aches and pains. Mr. Pemberton had created Coca-Cola. He never anticipated that Coke would become an international comfort product, the soft drink. The smartest thing John Pemberton ever did, besides inventing Coca-Cola, was to handle the secret formula for the syrup as a Trade Secret. To this day, the Coca-Cola Bottling Company zealously protects the ingredients and chemistry involved in producing the base syrup that is the essence of classic Coca-Cola.

Big Boy Restaurants protects the recipe for the tartar sauce that goes on their sandwiches, and that many customers buy by the bottle and take home. McDonalds doggedly protects the process their restaurants utilize to cut, cook and season their French-fries. William Wrigley was just as manic in keeping secret his technique for delivering powerfully flavored, long lasting, chewing gum.

Trade Secrets typically are not able to secure patent protections. The novelty of the Trade Secret is in the blending, chemistry or chronology utilized to deliver the finished product. If you have such a recipe you will want to keep this knowledge very near, as it can become very dear. If the public knew the formula for Coca-Cola, quite possibly there would be a lot of consumers keen to blend their own drink at home. Coke would not like that!

If your product has the potential and necessity to become a Trade Secret you will want to follow several very basic steps. First, write down every event related to the development of the formula. Keep a logbook with the data, dates and details of your work. As you finalize your development work memorialize all of the steps essential to delivering the finished product you wish to keep secret in a recipe or summary document. Then store in a very secure place (a safety deposit box, or safe) all of the work product and the recipe or formula.

The Trade Secret gains incredible asset value when your product becomes a market success. Selling a business built around a fully protected Trade Secret exponentially increases the value of the company. Coca-Cola, Betty Crocker, Duncan Hines, Oil of Olay, Schlitz, Dom Perignon, Ben and Jerry’s and Estee Lauder’s Youth Dew are only a few examples of famous brands built around a Trade Secret.

A Trademark is important in developing brand awareness for a product. Use a Patent Attorney when approaching the highly specialized area of seeking Trademark protection. I have never seen an entrepreneur successfully navigate the very complex workings of the USPTO. I HAVE seen many attempts to handle the process, all resulting in complete failure.

The content of a Trademark can include a customized, identifying icon, stylized brand name and a branding statement. Nike uses the famous slash (icon) the Company’s name (recognizable stylized font) and “Just Do It!” (branding statement). Include all of the elements that the public will recognize in your Trademark application.

Look around at local, regional, national and international companies and brands that you see every day. Pat’s Cheese Steaks in Philadelphia is a local business that has gained great fame and brand recognition and protects their brand with a trademark. It is a destination for visitors to Philly. Chanel, the French haute couture brand, is internationally revered and the classic “C” that adorns every unit of Chanel product is one of the most recognized brand icons in the world. Truly Nolen, the national pest removal service, trademarks the mouse ears seen on every piece of sales collateral, advertisement and service vehicle the Company uses.

Owning a Trademark confers an obligation to police and protect the assigned mark. The inclusion of ™ on every unit of product is essential. Again, consult an attorney. Trademarks can inadvertently become vacated and lost.

Copyrights are utilized to protect intellectual property. Movie content, poetry, music, books and plays are copyrighted. We have worked with clients on a number of video and board games. We always copyright the rules and/or the play features of the game.

Recently, Dan Brown, the writer of the wildly successful book the “The Da Vinci Code”, was suited for plagiarism by the British authors of a book about the search for the Holy Grail. The search for the Holy Grail is central to the plot of the “The Da Vinci Code”. There are full library shelves devoted to the search for the mystical Holy Grail. And yet, during the run-up to the movie release of “The Da Vinci Code” a legal action involving this intellectual property was commenced. Brown and his publisher vigorously defended their rights under their Copyright protection. They won full vindication from the court.

Producers of intellectual content properties (movie studios, record labels, book publishers) are very hesitant to accept unsolicited proposals for review. “The Da Vinci Code” saga is the reason. Legal action is rife in the area of intellectual property. We all remember things that we saw, heard or experienced from the distant, but dim past. Regurgitating a variation of that experience may find its way to the written page. Voila, was this material plagiarized?

Mattel and Hasbro will not review ANY outside toy submissions. Is it not coincidental that there has not been a breakthrough toy introduction in years from Hasbro or Mattel? This is one of the unfortunate byproducts of a litigious society, the limits placed on needed innovations. Protect your intellectual property with a Copyright.

I recommend to my clients, before spending a dime on a patent attorney, that they perform a cursory search at the USPTO.Gov web-site by providing all obvious key words applicable to their invention. If a number of patented products come up, and they are spot-on their idea, the item might not be a candidate for a filing. If the field seems open and clean, then I advise hiring the patent attorney to conduct a professional, thorough search. The in-depth search will confirm the potential for successfully obtaining patent protection.

Patents are the preferred style of protection for most inventors and entrepreneurs. Patents (utility) are very powerful agents of defense against predators, thieves and knock off artists. Not to be a boor, but, again, utilize the services of a patent attorney. I am always amazed and amused at how many people think they can successfully write, provide highly specific 3-D CAD art, file, handle USPTO objections and move the patent through the labyrinth of a Federal Government bureaucracy. Go Figure! They waste time and money, and usually negate any opportunity to have a re-filed patent successfully obtain a patent number.

The Provisional Patent filing is basically a letter that is placed on file with the USPTO. The Provisional filing advises the USPTO of the description of the product you are attempting to develop. The letter has a one-year life cycle and must be extended with a formal patent filing (Utility or Design) or the product is vacated forever.

We utilize the Provisional Patent as a fully legal way to state that a product in early stage development is Patent Pending. This filing is also very inexpensive relative to a design or utility patent. A Provisional Patent filing also enables the entrepreneur to have a one year time window to test and gauge market response to the invention. If reaction is positive, then it reinforces the necessity of continuing to devote assets to further development of the opportunity.

The Design Patent simply covers art features noted in the application. This is the weakest form of patent protection. A competitor only needs to change a design element, cosmetic feature or add an artisan variant to overcome a Design Patent. However, for products that have real commercial potential, but can not overcome prior, existing product art to obtain a Utility Patent, the Design Patent offers one potentially important benefit: the option to keep a product suspended in ongoing Patent Pending status.

We have done this on a number of occasions. A simple amendment to the initial filing means that a bureaucrat at the USPTO must find the file, pick it up, insert the amended filing detail and re-log the filing. As a result the filing goes to the back of the line and we gain months more Patent Pending protection.

Why go through all of this? When a product is in Patent pending mode it has ultimate protection. When a patent number is issued the clock starts ticking on the effective life of protection and details of the novelty of the patented product become public knowledge. Your product is obviated. It can be amazingly simple for the less than scrupulous knock off artist to engineer around your inventions unique features and benefits.

By keeping a product in Patent pending limbo we keep the features shrouded from any public awareness. This often leads to a first to market advantage and competition is only aware that there is a Patent pending. The added time that the product obtains, to build and extend sales traction, and begin the branding process is exponentially more valuable than the legal fees required to keep adding elementary addenda to the Design filing. You want to be first to market, and have as much time as possible to stand-alone in a market.

The Utility Patent is exceedingly valuable, both as a protective shield against competition and as a business asset. The invention that receives a Utility Patent number from the USPTO is potentially of interest to licensees, partners, investors and venture capital. Most patented products (Utility), however, never make it to market. We often see inventions that are novel, and thus patent possible, but not commercial, or needed, or beneficial. We all know a mad scientist or two, with endless designs, inventions and patents, none of which are ever going to be a market success.

The Utility Patent protects the novel features and benefits that the application describes in great detail. The patent attorney will narrate the unique aspects of your invention. They will also mention other patents near your space but painstakingly note the differences inherent to your invention. In addition, a great deal of effort will be devoted to creating 3-D Computer Assisted Design art that portrays your product from every possible angle and graphically depicts the uniqueness of your product.

Utility Patent filings rarely sail though the USPTO without being challenged. A competent patent attorney often anticipates the weakness in a filing and has a sheath of retorts ready to address the examiners concerns and questions. This re-directs the file back into the bureaucracy at USPTO. I tell my clients that they can expect up to an 18-month wait before receiving notice of the USPTO decision. However, on several complex filings, I have seen the process take up to six years.

Believe me, it is worth the work, the wait and the investment if a successful outcome from the USPTO is achieved. A Utility Patent conveys gravitas. The invention has stood up to the most stringent scrutiny and been accorded the most highly desired verdict: this invention has import.

Geoff Ficke has been a serial entrepreneur for almost 50 years. As a small boy, earning his spending money doing odd jobs in the neighborhood, he learned the value of selling himself, offering service and value for money.

After putting himself through the University of Kentucky (B.A. Broadcast Journalism, 1969) and serving in the United States Marine Corp, Mr. Ficke commenced a career in the cosmetic industry. After rising to National Sales Manager for Vidal Sassoon Hair Care at age 28, he then launched a number of ventures, including Rubigo Cosmetics, Parfums Pierre Wulff Paris, Le Bain Couture and Fashion Fragrance.

Mr. Ficke and his consulting firm, Duquesa Marketing, Inc. (http://www.duquesamarketing.com) has assisted businesses large and small, domestic and international, entrepreneurs, inventors and students in new product development, capital formation, licensing, marketing, sales and business plans and successful implementation of his customized strategies. He is a Senior Fellow at the Page Center for Entrepreneurial Studies, Business School, Miami University, Oxford, Ohio.

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