Busting a few intellectual-property myths

The City of Loveland hosted an innovation event in early September. Part of the impetus of the event was President Obama’s memorandum to heads of all government departments to accelerate transfer of technology from the government to small businesses. Many people were unaware of all of the efforts the current administration is taking to support small business and the ease of acquiring technology developed by government.

I was surprised at the number of other misconceptions I heard, when walking around and talking to people. The three most common: We don’t have any intellectual property to protect; we’re not doing anything new, just combining old elements; and, the changes in the patent laws don’t make any difference.

OK, so let’s bust some myths, shall we?

Myth one: We don’t have any intellectual property to protect. The first person saying this was standing next to a rack of documents the company had prepared that displayed a professionally created logo. Taking a look at the documents, it appeared that the company had spent considerable resources creating them. I suspect they would not like someone to copy the documents and use them to promote competing products. The contents of those documents are indeed protected even if they are not registered with the Copyright Office. But, to enforce the rights, they must be registered – a relatively inexpensive process.

I also suspect that they paid a marketing firm or a graphic designer to come up with their logo and would be most displeased if someone else used that logo to try to market a competing product after they develop an identification of the brand. Again, they have a common-law right to the logo and to keep others from using it. However, if they register the trademark with the Trademark Office, they have a much stronger position and need not work as hard to prove ownership.

Finally, someone else told me that all of the components of a device being displayed were open source and they wanted to keep it open source to keep cost down. That’s nice, but it may prove difficult to recover the cost of invention if anything can be copied by anyone and manufactured at a lower cost in Peru or Korea.

How much did you pay for your logo? Marketing materials? To develop your device? Is it worth finishing the project and protecting them, or do you care if someone else takes them and uses them without paying you and takes your customers? Even if you don’t, someone thinking about investing in your company may care.

Myth two: We don’t have anything patentable; we’re just combining existing elements. This has been a common theme at least since before 1873 when the U.S. Supreme Court said that “a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made.” Sticks have been around since the first trees. There are more than 480 patents for tripods, even though people simply put three of those sticks together.

So, if you have a new combination of old elements, in which, by a different location of one or more of the elements, you attain a new and useful result, or you produce an old result in a better way, your invention is probably patentable. What does patenting do? It puts the information in the public domain so people can improve upon it and technology can advance while protecting your right to the invention for a period of time. If you are a startup, it also increases your value to investors or buyers. But please don’t use one of those patent companies advertised on TV. Despite their bait and switch advertisements, they are not cheap and they get you practically nothing.

Myth three: The changes in the patent laws don’t make a difference. The United States is in the process of going from a first-to-invent system to a first-to-file system for determining ownership of inventions. If you have an invention and you tell someone about it and they file for a patent first, it will soon cost you tens of thousands of dollars to attempt to wrest the patent from the interloper. There is no guarantee of success. This is only one of several drastic changes. Get informed.

The bottom line? Many people have misconceptions about intellectual property. Find out what the facts are. A good place to start is uspto.gov, or your favorite attorney.

Alan F. Blakley is a lawyer with CR MILES PC in Fort Collins. He may be reached at afblakley@crmiles.com. The information included in this column is general information. You should contact your own lawyer before making any legal decisions.   

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