Can You Patent or Trademark Your Original Recipes?

By: MONA BUSHNELL

Protecting your original recipes with a patent isn't easy, but it is possible. Here's how.

Stealing recipes is a time-honored tradition for home cooks and professionals alike. One need only peruse the world of food bloggers for five minutes to discover just how many people have an "original" recipe for chocolate chip cookies that varies by about 4 teaspoons of sugar or two minutes of cooking time. With so many people out there ready and willing to take credit for other chefs' work, many restaurateurs and food industry pros are naturally curious about what they can do to protect their original creations.

Here's the thing: It is possible to patent food products and to trademark food names, but the constraints are very narrow and don't apply to the types of foods sold in most independent restaurants.

How to patent a recipe

A recipe may be successfully patented if it meets several criteria. First, the recipe in question must be novel. That means it cannot be a food item previously familiar to the public or an obvious combination of pre-existing food items. For example, if you decide to take brownies and chocolate chip cookies, and mix them with coffee ice cream for a flavor called Coffee Brownie Chip, you'll have a tough time getting that patented. The reason is that, even if no one else has sold that exact combination before, the notion of combining candy and cookies into ice cream is well-trodden territory, and therefore it's not a novel product. If it's possible for a fellow chef to taste your recipe and discern what's in it and how it was made, that's a surefire sign your recipe isn't novel enough for a patent.

Now, if you found a way to make Coffee Brownie Chip ice cream with a totally unique food formulation or process, like by using spinach instead of milk and cream, or by freezing it in a way that's never been done before (if you invented the freezing process used, for example), you have a better shot at getting a patent. Remember, a patent is for the protection of an original invention, so your recipe can't just be the best barbecue sauce ever – it must be something that breaks the mold in terms of formulation or process, or both.

These guidelines make it difficult, bordering on impossible, to protect recipes under patent law unless you are part of a food science lab, backed by a large food corporation, or part of a powerful chain or franchise. For most independent food retailers, restaurants, cafes, bakeries and boutique food companies, there's no point in even trying to get a patent.

Trademarking a recipe

While patenting a recipe is extremely difficult, it is possible to trademark a recipe or food item for branding purposes. Trademarking the name of a food item won't prevent someone from stealing, recreating or selling your recipe, but it will prevent the competition from advertising it by the same name. This is evident in the proliferation of "dupe" recipes online. It's not illegal for a chef to figure out how a popular soda is made and then publish the recipe, or even make it herself and sell it in her restaurant. However, she cannot call the soda by the name it goes by on the grocery store shelves, because that name is trademarked.

Fast food and chain restaurants are great at the trademarking approach, but it can work for smaller businesses as well. In many cases of trademarked foods, the trademarked name eventually becomes more powerful than the food item itself. Anyone can cook a processed frozen burger, slap on some dehydrated onions and sell it, but only one restaurant in the world can legally serve a Big Mac. 

What to do if you can't patent or trademark

You've probably heard the term "trade secret" before, and it's probably the oldest and most effective way of protecting original recipes, but it isn't legally binding. A trade secret essentially means that you have developed an internal system for maintaining secrecy, without legal recourse if things go wrong. The key to maintaining a trade secret is having a trustworthy staff and staying tight-lipped about the secret ingredients and cooking processes for your best sellers.

Source >> https://www.business.com/articles/can-you-patent-a-recipe/

Forget the Scams, Make Money from Your Invention

By: Michael J Foycik Jr. 
April 27, 2013 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

You've seen the scams.  Forget those, and move on: real people can and do make money from their inventions.  Let's see who and how.

Who succeeds with their inventions?  Just about anyone, and at just about any age.  Here are a few ways.

If samples of the inventive product are available, then the quickest route can often involve first rate department stores and consignment sales.  It's easy if you know how, and it's easy to try even if you don't know how.  One successful person just went to their favorite department store, bringing their product, and talked to a manager about it.

For some inventions, it may be better to go through distributors.  That is not hard, but it is not always easy either.  Some distributors will help with the manufacturing costs, and some won't.  Your best deals come when you can provide the goods.

Sometimes, it helps to get investors to provide funding and expertise, so you can make and sell the invention.  The best ways to get investors involve one important first step: finding the manufacturing cost of a prototype.  That part isn't difficult if you know how, and can often be done in just a few days.  Most inventors are surpised by the low costs, and of course investors like seeing low costs since it means higher profits.

There are ways to find and meet investors.  I recommend e-press releases as a very low cost way to attract investors.  I can also recommend viral marketing, which is also a relatively low cost way.  There are even investor clubs in many areas, if you look for them.

Read More >> http://internationalpatentservice.com/Forget-the-Scams-Make-Money-from-Your-Invention.html

When Your Startup Stops

By: Matt Hackett

Beme as a company is ending

We announced earlier today that Beme, the company I founded 3 ½ years ago with Casey Neistat that CNN acquired in late 2016, is no longer going to exist as a standalone company. Casey and I will be moving on, but the team and technology will be pulled into CNN. Casey explains it here:

This is not the story of the aging conglomerate that couldn’t innovate and rejected the young startup blood. CNN left us genuinely independent post-acquisition, with a financial, editorial, and technological leash as long as we could wish for. Andrew, Chris, Jeff and everyone else we encountered at CNN was supportive in a way that defies the typical acquisition narrative.

Over the past year, we’ve experimented wildly in technology-enabled news, an area where the world needs experimentation. We built two products and a YouTube channel I’m very proud of.

Ultimately, while we have built some valuable things, we didn’t hit the escape velocity the business needed to exist independently.

I don’t regret a moment of working on Beme.

A startup is a shared, constructive delusion. Off in a well-guarded cave, you and your team believe, against dismal odds, that some piece of reality is on the cusp of massive change. You’re the only ones who can make that better reality possible, and you can do it in just a matter of years.

In moments like this, leaving your distorted-reality cave for the harsh light of the world, it’s hard not to be a little sad. Not for myself — to an entrepreneur one end just reveals a wide open set of new opportunities — but for a version of the world you dreamed up that just won’t quite come to pass.

Not that we haven’t accomplished anything since we joined CNN. Far from it:

We made 40 videos as Beme News that showed how the participatory ethos of YouTube and the mission of journalism can meet. That channel will keep growing within CNN Digital Studios.

We built Panels, an app for honest, constructive dialogue between real people about the news. This technology will be pulled into CNN’s core experience.
We quietly (the product is still under wraps) built Wire, a machine-learning-powered platform for journalists to cover live news in a world where your smartphone is always closer than your TV remote. This technology will become a key part of what CNN is building for mobile.
Most of the team — including everyone working on these critical tech products — will be asked to stay on and bring our unique approach to CNN.

A few people won’t be offered jobs. They will get generous severance, but it still hurts to see those who believed in you in that position. For the few on our team who won’t be joining or choose not to join CNN, my network and time is entirely at their disposal until everyone lands on their feet.

As this chapter comes to an end, I’ve been taking a nostalgic trip through our old Beme files, looking at our earliest prototypes. Back then, the entirety of the “company” was me, Casey (sub-1M subscribers) and Jack in a closet of an office next to his studio. I marvel at how much has happened in these few years.

When we started this company, if you had told me I’d be working with world-class journalists to try a new approach to news, let alone be successfully acquired (making real money for our investors and team), let alone have a million users download our app in a matter of weeks, let alone have a front row seat to the rise of a once-in-a-generation creative talent, let alone build multiple products at the cutting edge of video with whip-smart people who believe in me … I would have laughed.

I’m so grateful to the millions of people who gave our products a shot. Whether you downloaded the original Beme app or encountered us as Beme News and Panels: thank you.

Some of our ideas might not have hit their mark. The team we built, however, is unimpeachable. The engineers, designers, creators and journalists I’ve had the pleasure of working with are brilliant human beings who have applied themselves without reservation. I’ll really miss showing up to our office every day.

Personally, I’m ready for a new chapter. It may be time for me to move on from making [social] media products and to play in a different field. Not that there aren’t opportunities to build more tools for connecting and informing humans — there are plenty! I’d just like to test my mettle elsewhere. Suggestions?

And before any of that, I’ll be heading somewhere warmer than New York in February and digging into a tall stack of neglected books. 2018 is going to be a year of renewal, travel, research and exploration for me.

Source >> https://medium.com/@mhkt/when-your-startup-stops-d275c15ff702

HOW TO MAKE MONEY FROM A PATENT

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

Attorney Advice on:  How to Make Money from a Patent
by Michael Foycik, registered US patent attorney
April 18, 2013 

I am often asked how to make money from a patent, and that is an excellent question.  There is the commonly known answer, and a lesser known but more important answer.  The common answer is, a patent can be licensed or assigned.  A license is similar to renting the patent, whereas an assignment is a sale of the patent.  A license can be sold to more than one company, for example.

The less commonly known answer, though, is far more important to inventors and businesses.  This answer concerns the patent application, which is not issued as a patent but instead is still pending.  Thus, it is known to provide “patent pending” status.  The question of how to make money from a patent then becomes one of how to make money from a patent pending.  This too is done by license or assignment.

Read More >> http://internationalpatentservice.com/How-to-Make-Money-from-a-Patent.html

Protecting Your Restaurant’s Intellectual Property Is More Important Than You Think

By: ALICIA BELL, 1.26.2018

In 2013, the inventive New York pastry chef Dominique Ansell created the Cronut, a cream-filled donut-croissant hybrid that quickly became a viral sensation across the globe.  After a food blogger wrote about the Cronut, people from all over the world started lining up outside Ansell’s bakery to buy one of the just several hundred he produced each day.  And while some of the Cronut craze has died down, as of 2016, from 60 to 100 people were still showing up every day at Ansell’s bakery to buy one. 

Ansell isn’t just famous for producing the Cronut, however—he’s also known for registering a federal trademark for the name of the unique baked good, preventing other bakeries from selling similar pastries under the same catchy name.  And while Ansell’s trademarking move caused some criticism, it turned out to be smart business on his part—he has parlayed his invention into a global food business, with two bakeries in New York, one in London, one in Japan, and a full-service restaurant in Los Angeles that launched just this year.

Restaurant sales have been recently growing at about two percent each year right along with the economy, with overall sales expected to hit $799 billion in 2017.  As the industry grows, and as customers pay more attention to local and artisan foods and celebrity chefs, there’s a growing interest in protecting recipes, signature dishes, and even restaurant brands as intellectual property.  After all, it’s a restaurant’s unique approach to food and customer experience that distinguishes it in a crowded marketplace—and that uniqueness can be a key factor in bringing in more customers and helping the restaurant grow.

Unfortunately, some restaurant owners do not take steps to protect their intellectual property and that often means heartache when copycat restaurants open down the street or key employees take recipes or food-preparation secrets with them.  The first step to knowing what should be protected in the restaurant business is to understand the four basic ways that intellectual property is protected:

Trademark
A restaurant’s name, its logo, the names of menu items and in some cases, food designs—all these things can be protected by trademark law.  The U.S. Patent and Trademark Office (the “USPTO”) defines a trademark as a “word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”

Copyright
Menu designs, marketing materials, and a restaurant’s website fall under copyright law, which protects “original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”  Copyright protection lasts a long time—70 years after the death of the author for individuals and as long as 120 years after creation for copyrights owned by businesses.

Trade Secret
 Recipes, customer and vendor lists, and specific ways of doing things in the kitchen can be protected as trade secrets, which the USPTO defines as any information used in a business that gives the owner an economic advantage over competitors who do not know or use the information.  Trade-secret information can “include a formula, pattern, compilation, program, device, method, technique or process.”

Patent
The USPTO explains that a patent is a “limited duration property right relating to an invention,” granted by the USPTO “in exchange for public disclosure of the invention.  Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.”  While often difficult and expensive to get, patents have been issued to some larger food companies for their products—for example, Kraft’s patent for the method of making a microwavable sponge cake. 

To adequately protect intellectual property, it’s important as restaurant owners, chefs, and managers to know what intellectual property you have and to understand its value in the same way you understand the value of tangible property such as furniture, equipment, and buildings.  In fact, in my view, a restaurant’s intellectual property—a compelling brand or popular original dishes—can be that restaurant’s most valuable asset.  You don’t have to protect everything, and doing so can certainly be costly and time-intensive.  But taking stock of what makes your restaurant valuable and what sets it apart from competitors can help you prioritize the intangible property that is worth protecting.

Just as important as protecting your own intellectual property is ensuring that you don’t infringe on the intellectual property of others and put your business (or yourself) in legal or financial peril.  The food and restaurant company Olympia Provisions (formerly Olympic Provisions) found this out the hard way.  With one small restaurant and an attached charcuterie facility, the company chose its name in 2009 from the “Olympic Cereal Building” where it was first housed.

After six years of steady growth and a national reputation, in 2014 the business received a cease-and-desist letter related to its name from the International Olympic Committee—and the company was forced into an expensive name change on everything that it had branded, from “packaging to restaurants to delivery trucks,” according to cofounder Elias Cairo.  While this particular dispute may have been hard to foresee when Olympia Provisions was just starting out, doing some research to see whether your desired name is already being used by someone else can help prevent costly disputes down the road.

Intellectual property disputes often result from disagreements between people—for example, between co-owners or partners in a restaurant business, or former employees.  Thinking through how intellectual property might be treated if a business partnership dissolves is important—a good partnership agreement will outline in advance how intellectual property might be fairly handled. It’s also critical to have agreements with anyone creating intangible property for the restaurant that ensure the restaurant owns the resulting intellectual property.  Confidentiality agreements for key employees who handle intellectual property such as recipes are also important, and those key employees should sign these agreements as a condition of employment.  Noncompete agreements can also be helpful, but they are not always binding, so check before you ask employees or partners to sign them.

While protection of your intellectual property may seem like just another overwhelming task in a busy operation, much of this protection can be obtained relatively easily with help from a lawyer who understands the issues inherent in the restaurant industry.  The first step is identifying what you should protect—once you’ve determined what’s unique and desired about your restaurant or business, creating a system to protect it can be fairly straightforward.  Protecting and maximizing the value of a business is on the top of every business owner’s list, and in the case of intellectual property, taking small steps now can pay off in a big way later.

Source >> https://www.modernrestaurantmanagement.com/protecting-your-restaurants-intellectual-property-is-more-important-than-you-think/

How to Trademark

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

HOW TO TRADEMARK . . .

- a word
- a phrase
- a logo

A US Trademark Application can protect a word, a phrase, a log, and even a color. This article explains how to trademark these elements.

A US Trademark Application requires at least the following information: the name and address of the owner; the mark itself; the type of goods or services to be used with the mark; and the type of use, i.e. actual use or intent-to-use.

If the trademark application is based on actual use, then the date of first use in interstate or international commerce is required. If the owner is a corporation, the state of incorporation is also needed along with the name of the person who has authority to sign the trademark application.

A trademark search is strongly recommended. Skill is required in interpreting the results, since even identical trademarks can be registered if they are in sufficiently different classes of goods/services.

Raed More >> http://internationalpatentservice.com/How-to-Trademark.html

Why Patents Should Be Part Of Every Startup's Risk Mitigation Strategy

By: Russell W. Binns, Jr

Founders who want to start a company face daunting odds. There are a lot of statistics, but the consensus is that 90% of startups fail within three to five years. See e.g. Ron Berman, et al., Startup Genome Report (March 2012). With odds like these, young companies need to do everything they can to mitigate risks they face in their early days. Most start-ups tend to spend nearly all their time thinking about how to make a great product and get people to buy it. That makes complete sense, but in my experience too many start-ups overlook the need to protect their intellectual property -- a costly and sometimes even fatal mistake. Startups sometimes refrain from pursuing patents and other intellectual property due to limited funds. Despite the costs, however, there’s a strong case that start-up companies and their legal counsels need to incorporate intellectual property into their risk mitigation strategy early on to avoid problems as they grow. Besides being able to monetize patents, they can potentially block others from negatively impacting your business, and investors often see patents as a valuable property right.

Here are some of the reasons why, as well as some tips on how start-ups should approach developing a patent strategy that protects their businesses over the long-term.

Patent Protection Can Reduce Litigation Exposure and Grow Value

Most companies have some innovation that needs protecting whether they’re in the fast-growing tech or mobile sectors or in more traditional sectors like manufacturing. Perhaps the biggest reason for a start-up to think early on about patent protection is the threat of patent litigation. Litigation is a potent weapon that some competitors use to halt the progress of fast growing companies, and in some cases, they become bet-the-company cases. Smaller companies are easy targets – they have limited resources and expertise – and they are not in a position to deal with large patent risk. And, as companies grow, they also become targets for non-practicing entities and what some refer to as “patent trolls,” who can tie companies up in often frivolous but very costly litigation. In fact, a staggering 60% of defendants in non-practicing entity patent suits target companies with less than $100 million in revenue. See RPX Broker Rundown (May 2016).

But there are a number of other good reasons for start-ups to think more proactively about patents. A strong patent strategy is often a competitive advantage; can help a start-up get funding; can enhance its reputation; can facilitate joint ventures and partnerships; help it go public or be acquired; and can lead to licensing and monetization opportunities. Investors and Wall Street often look at a startup’s patent portfolio in their decision to invest, as well as how much to invest.  Mary Juetten, Do Venture Capitalists Care About Intellectual Property?, Forbes (Aug. 11, 2015). Patents provide investors security and position a startup for long term growth. They add gravitas to reaching the initial public offering stage and are a factor in the longevity of a business after IPO. See Wagner & Cockburn, Patents and the Survival of Internet-Related IPOs, 39 Research Policy 214 (2010).

Some Thoughts for Software and Tech Companies

Perhaps somewhat surprisingly, companies in industries that are seeing some of the most rapid innovation -- like software and tech companies, particularly those focused on content delivery -- often ignore the problem and don’t focus on future risk mitigation until they have a problem, and the result can be costly. See Ozluturk, The Cost of Not Having Patent Protection, IP Watchdog (Oct. 21, 2014).

Source >> https://www.forbes.com/sites/groupthink/2016/12/14/why-patents-should-be-part-of-every-startups-risk-mitigation-strategy/#2f790bc61af6

Why Trademark

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

WHY TRADEMARK. . .

>> to sell a business
>> to attract investors
>> to stop competitors
>> to protect a web site domain name

What you can trademark:
>> a word, phrase, or slogan
>> a logo or design

Competitors can trade on your good name. Unless, that is, you have strong trademark rights. And what rights are those? The best trademark rights would be based on a federally registered trademark.

If you want to protect your company's web site domain name, you will need to be able to prove trademark rights in the name itself. There is no surer way than ownership of a federally registered trademark, which can usually confer nationwide rights.

There are other trademark rights too: state registrations, and common law trademark rights. Those may be very worthwhile too, but may not have national scope.

Common law rights sometimes require proof of instances of actual confusion, but even then there is a question of proving priority, i.e. who was first.

This brings us to federal trademark rights. In advertising, you may see a trademark followed by the symbol “R” in a circle. That indicates that the trademark is federally registered. A trademark followed by the symbol “TM” indicates that the owner wishes to claim common law trademark rights, or has other trademark rights.

A good trademark can help any business, and a successful one also attracts investors and can help when selling your business. Without a trademark, there is often nothing of value to sell.

Read More >> http://internationalpatentservice.com/Why-Trademark.html

COPYRIGHTS AND PATENTS

By: Joe Cline

Understanding the differences between patents, trademarks, and copyright is essential for any creative entrepreneur. A thorough grounding in the concepts and definitions of these basic protections for intellectual property will provide you with a solid basis for protecting yourventions, creative works, and corporate reputation. Enlisting the help of a business attorney is an important step in ensuring your intellectual property is secure, but it's equally important to inform yourself about the various methods by which individuals and companies can safeguard their creative efforts and protect their financial interests.

Patents

Within the United States, patents are granted by the US Patent and Trademark Office forventions. A patent offers the holder exclusive rights to an original process, machine, or invention or to any significant improvement to an existing patented process. Patents may be awarded for biologicalventions or discoveries, for software processes or programs, for new chemical processes or compounds, and for business processes that are markedly original or unique. Patents do not confer the right to manufacture the invention, but rather prevent others from manufacturing it for a set period of time, usually twenty years. In some cases, a patent holder may not be legally enticed to manufacture the device; This usually occurs in cases where the patent is granted for a significant improvement to an existing patented device. Without obtaining permission from the patent holder for the existing device, the holder of the new patent can not manufacture the improvement. Such patents are generally either sold or retained until the original patent expires. Patent infringement is a civil matter and is generally pursued through civil lawsuits in the courts.

Trademarks

Trademarks are the easily recognizable symbols and signs of a particular individual, business concern or organization. Trademarks are divided into three categories: unregistered trade marks, unregistered service marks, and registered trademarks. Typically, unregistered trade and service marks are only valid in a limited geographical area; registered trademarks are protected throughout the country in which the trademark was granted. Trademarks are used to identify the makers of products and the providers of services in the consumer market; as such, they are valuable commodities and should be protected against infringement or imitation. Registered trademarks must be obtained through the US Patent and Trademark Office and offer significantly more legal protection to their holders than other types of trade and service marks.

Copyright

One of the most inclusive and versatile types of intellectual property protections, copyright restricts exclusive rights to authors of creative works, including plays, works of fiction, maps, musical compositions, works of art, photographs, motion pictures, dance choreography, architectural blueprints, and software. Unlike patents, copyright does not protect the ideas or concepts within the work, but only the way in which those ideas are expressed. For instance, copyright protections apply to the "look and feel" of certain works of art and software programs, protecting their stylistic elements without protecting the subject matter with which they deal. Copyright is obtained automatically upon setting the material down in a fixed form such as print, canvas, or digital media. While copyright is the easiest form of intellectual property protection to obtain, it can be the hardest to defend. It is usually advisable to seek legal counsel if you believe your copyright has been infringed in order to protect your creative rights.

Source >> https://articlesly.com/copyrights-and-patents/

HOW TO PATENT AN IDEA

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

How to patent an idea? There are several good approaches, as follows. Easiest: file a Provisional patent application ("PPA"). Advantages: low cost, low government fee, few formalities, true "patent pending" status, priority rights for any later-filed utility or PCT applications filed within one year. No examination occurs.

How to file a Provisional patent application (PPA): service fee is relatively low and very affordable; call or email for a quote for a specific invention idea.

Next up: file a Design patent application. Yes, it protects just the appearance of the inventive product or design, but costs much less than a utility patent application, has lower government filing fees, and often has better chances of success with the US Patent Office. Call or email for a price quote for a specific inventive idea, there is no charge or obligation.

Read More >> http://internationalpatentservice.com/How-to-Patent-an-Idea.html

Can cake designs result in intellectual property protection?

By: Amanda G. Ciccatelli

Cake isn’t usually a hot topic in the world of law, but at President Donald Trump’s inauguration celebrations earlier this year, cake became a huge matter of debate.

One of Trump’s cakes—created for the Salute to Our Armed Services Ball—was an almost exact copy of one made for the last Obama inauguration, which was originally created by Duff Goldman. On January 20th, he tweeted images of the two cakes, pointing out that he did not bake the cake at this year’s Trump celebrations. The very next day, Terry MacIsaac, owner of Buttercream Bakeshop, took credit for the Trump cake on Instagram, telling The Washington Post that her client on the Trump team contacted the bakery with a photo looking for a copy. The baker initially tried to encourage use of the photo as inspiration, but ended up creating replica at the client’s insistence.

So, can cake designs result in intellectual property protection?

Yes, according to Terrell Miller, partner at Gardere recently sat down with IPWatchdog for an exclusive interview. Typically, patents protect inventions of new tangible things, copyrights protect artistic expression, and trademarks protect a name or symbol that identifies the source of goods or services. When it comes baking, under federal IP law, a recipe may be patented if it qualifies as a new invention. Per The United States Patent and Trademark Office, food products can be patented “when the combination of ingredients used, or the way they are processed, results in a food product totally unexpected.”

Excluding any questions regarding the rare patentability of a cake recipe, cake designs, under certain circumstances, may be protected under the laws of copyright and trademark. Specifically, for copyright, 17 USC 101 provides the relevant definition of a “pictorial, graphic, or sculptural work,” which may include two-dimensional and three-dimensional works relevant to cake designs. For example, if a cake design includes works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned, then such cake design can be protected under copyright.

“Simply stated, if the design incorporates original ‘pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects’ of the cake itself, then such design is subject to copyright protection,” he explained. “Thus, if the appearance of the cake’s two-dimensional or three-dimensional decorations, for example, are artistic themselves and capable of being recognized artistically apart from the function of the cake, then copyright protections are available.”

As for trademark, this is more of a rarity for cake designs. However, for instance, if a company were to use a unique shape and perhaps design in the decoration of its cakes, that becomes known by the public as a symbol or source identifier of the company making the cakes, then decorative design could qualify as a trademark. According to Miller, an example of this is the famous marshmallow Peep candy that is popular among consumers, especially during the Easter holiday season. The exact shape of the marshmallow Peep has been a registered trademark of its maker, Just Born, Inc., since 1998.

Today, baked good designs of all types do count as intellectual property, according to Miller, for the same reasons listed above. For example, if a baker creates an original two-dimensional portrait of himself out of frosting on a cake, then the portrait is an original work of authorship that is fixed in a tangible medium, and capable of being separated from the utilitarian function of the cake. He said, “In this case, it’s simply original art with the medium being food coloring and frosting, instead of acrylic paints, on a cake, instead of a canvass.”

In terms of the case with one of President Trump’s cakes, without knowing the specifics, as to whether permission was granted, and excluding any defenses under fair use (17 USC 107), a violation of copyright law would be of serious concern.

There have also been a few cases where confectionary trademark was litigated. In fact, per Quartz, in 2015, Disney, Sanrio (the makers of Hello Kitty), and other plaintiffs sued Michigan resident George Wilson in federal court in California for selling frosting designs they said infringed on their trademarks. The case did not get very far, however, because the defendant had a pending bankruptcy case and the court stayed the IP case pending resolution of the bankruptcy case.

So, how can bakers protect themselves from copyright infringement?

Miller advised, “While it’s permissible to use prior works as inspiration, it’s a fine line when inspiration crosses over into copying the prior work or creating a derivative of the prior work, both of which are prohibited under the copyright laws.”

Source >> http://www.ipwatchdog.com/2017/08/08/cake-designs-intellectual-property/id=86558/

Ways To Make Money From Your Patent

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

Ways To Make Money From Your Patent

Here are some ways inventors can make money from their patents. These come directly from actual successes of actual inventors, as told by the inventors themselves in published interviews.

It is important to realize that every invention is different, with different markets. And, different inventions tend to attract different types of investors. Focus on what makes your invention different, and the rest will be easier.

The Licensing Approach - Accumulating Licensees
There are several approaches to gaining licensees. The following is one of the most successful approaches, where there are a number of different infringers. Where there is only one infringer, it may be necessary to threaten litigation, but that only works if the infringer believes you have the resources to do it.

First: identify which companies, products or services may be infringing your patent. Make a list, and try to estimate the sales of each one.

Then, line up the infringers by the estimated amount of infringing sales. Send demand letters to the smallest infringers, asking relatively small royalties. It would not be unreasonable to offer petty infringers royalty rates of 2%, or in some cases even a 0% royalty; all conditioned upon sales being below a certain limit.

As you accumulate more and more licensees, you will approach larger and larger infringers. The more licensees you have, the easier it is to sign on bigger companies as licensees. And, you can ask form somewhat larger royalty amounts. Having ten licensees, for example, is a persuasive factor to a company you approach for royalties, when that company is deciding whether or not to risk being sued for infringement. By this time, the royalty demands should be in the 6% to 9% range.

The largest infringers are saved for last. For those companies, seeing your list of licensees suggests you will have substantial reserves in case of litigation. It is much easier, by this point, to persuade them to pay the higher royalties in the range of 10% to 18%.

Read More >> http://internationalpatentservice.com/Ways-To-Make-Money-From-Your-Patent.html

Applied DNA Earns New SigNature Patent, More T’d Up

By: GREGORY ZELLER 

Applied DNA Sciences has added two new U.S. patents to its impressive collection – at least, a new patent-and-a-half.

The Stony Brook-based supply-chain, anti-counterfeiting, anti-theft and product-authentication specialist announced this week the arrival of U.S. Patent No. 9,790,538, covering “Alkaline Activation for Immobilization of DNA Taggants” – essentially, protecting the core technology powering Applied DNA’s SigNature T molecular tags.

The biotech also announced a Notice of Allowance on U.S. Patent Application 15/027,454, covering the company’s Multimode Image and Spectral Reader, which enables instant authentication of DNA-tagged products.

A Notice of Allowance indicates that the U.S. Patent & Trademark Office believes an invention qualifies for a patent, but the applicant has not completed the patent-application process – often including the payment of certain patent-processing fees.

That will happen soon enough, according to Applied DNA President and CEO James Hayward, who noted many potential verticals opened up by a fully protected multimode reader.

“The patenting of our MMR device paves the way for the instant authentication of a broad range of taggants and exciting licensing opportunities,” Hayward said.

Issued in mid-October, the SigNature T DNA taggants patent is directed at methods of enhancing the “binding affinity of molecular tags to a variety of textile substrates, including cotton, wool, cellulosic materials and manmade fibers,” according to Applied DNA.

The enhanced binding affinity of the SigNature T molecular tags enables the tags to survive harsh manufacturing processes – including those commonly used in leather, cotton and synthetics manufacturing – and is “integral to the company’s pursuit of a global textile industry anticipated to grow to $910 billion in sales in 2019,” the company said in a statement.

The Multimode Image and Spectral Reader allowance, issued in late October, provides for instant detection and identification of a wide variety of optical, molecular, olfactory and radio-based taggants through the use of “electronic sensor capture and digital database analysis,” according to the biotech.

The handheld MMR device can rapidly detect one or more of those taggants and compare them to a library of “known taggant configurations,” thereby providing “instant authentication,” Applied DNA said.

While that second new patent is still officially pending, the issuance of Patent No. 9,790,538 raises Applied DNA’s patent portfolio to 53, with more than 70 further applications still being considered by the U.S. Patent & Trademark Office.

The company was issued four U.S. patents and one Canadian patent in 2016, including one patent covering fiber-typing services currently utilized by major U.S. retailers and brands and SigNature T supply-chain partners, and another covering the SigNature T platform itself.

Those protections are critical, Hayward noted, as recognition of Applied DNA and its powerful products quickly spreads.

“Protecting our innovations has always been a cornerstone of Applied DNA,” the CEO said. “Our robust intellectual property portfolio is more important than ever, as industry awareness and acceptance of our technologies is rapidly growing.

“We take great pride in the patenting of our SigNature T molecular tags, providing us with broad long-term market exclusivity.”

Source >> http://www.innovateli.com/applied-dna-earns-new-signature-patent-td/

Do I Need A Patent?

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

When – and why - do you need a patent?

You need a patent:

If you wish to stop others from copying your invention.

If you wish to protect yourself from competitors who may copy your invention and then try to patent it themselves.

If your product is in stores and you are challenged by a competitor who claims they have patent rights of their own.

If having a unique new product would allow you to set a much higher selling price.

If it is important to impress potential investors, customers or retailers.

if you want to stop illegal copies of your products from entering the U.S.

If you hope to sell your business for a profit. Patent rights are often the most important asset of a successful business.

If you hope to license your patented product to others.

And, there may be other reasons, in particular cases, for having a patent.

And, there's more! A patent is based on a patent application. Even before a patent application issues as a patent, the pending patent application can also give important benefits. These are as follows.

Read More >> http://internationalpatentservice.com/do-i-need-a-patent.html

This outfit wants startups to trade equity for patents from big tech players

By: Connie Loizos

Aqua Licensing is a four-year-old patent advisory and transaction firm that typically works behind the scenes, helping companies sell their patents for a variety of reasons. But it has a new proposal for venture-backed startups that are in fundraising mode: it wants them to give big tech companies like AT&T and Lenovo some of their equity in exchange for patents that the companies no longer use but could prove useful for the startups.

Put another way, it wants to create a two-sided marketplace that helps big corporations find stakes in more startups, while also pushing startups to think from an early age about their patent strategy.

The initiative makes some degree of sense. As companies mature, they often need to think more about patents as a way to protect their business. (If a company has a patent on a product or service or idea, that’s one less patent an outsider can acquire to assert against it.)

Of course, it’s also easy to imagine the many obstacles to it working, starting with startups’ priorities. “This relies on startups thinking proactively in the early stages about a need for patents,” notes Greg Gretsch, a longtime venture capitalist and a co-founder of Jackson Square Ventures in San Francisco. “In my experience, that’s generally not top of mind for founders, and if you told them it would cost them equity, they’d probably be even less interested in engaging.”

Late last week, we talked with Aqua founder Mark McMillan to learn more about how he sees this working, and why he thinks Aqua can overcome some of these challenges. Our chat has been edited for length.

TC: You’re trying to match startups with patents or defensive patents, saying it will help them protect their innovations, as well as help them scale. What was the impetus for the idea?

MM: We were working with a major client last year and a discussion came up around the challenges of selling IP assets into startups. The startups don’t have a lot of cash to buy them, and VCs don’t necessarily want them doing strategic transactions that are ancillary. Meanwhile, the patent market is growing and people — companies — find themselves with assets that may be depreciating in value and costing them maintenance fees.

TC: What are some of the big companies that you’ve signed up to this exchange program?

MM: We’re announcing Lenovo, Rambus and AT&T today, but we have a large collection of participants that are prepared to sell to the right startup at the right price.

TC: How does this process work?

MM: Startups will submit their investment plan to us, just like they would to VCs. We have analytics capabilities that will help them find appropriate assets.

TC: Given these are young companies, how can you really know what patents make the most sense for them?

MM: We start by assuming a company has started working on its own unique patents, and get a read on the competitors it’ll be disrupting. If we can find patents that likely read on these competitors, the startup’s business plan then goes to the participating member (with the relevant patents). If that member is interested in the startup and would like to sell its patent in exchange for equity, the member then values its patents and lists a price that the startup can accept or reject.

A final closing condition has to be the closure of a qualified venture funding round and [the big tech company’s] commitment to invest the proceeds of [that patent sale] into that round. It also has to give the startup at least 90 days to complete the funding round. After that, the [big tech company] gets the same terms as the VCs in the round and becomes a minor syndicate player, and the startup gets full ownership rights to the IP assets.

TC: Some startups may scoff at the idea of giving a big tech company so much information about their business, when they don’t know at the outset that they’ll want its patents.

MM: Some have asked for NDAs already. We can tell them who we’ve matched to them before we send off their business plan.

TC: And if the startup doesn’t want to do a deal anyway, because maybe the price isn’t right? Do they then need to worry about those patents being used against them in some way?

MM: The patents in the pool are for sale. The companies aren’t looking to assert these assets. If they don’t accept the offer, nothing happens.

TC: How do the companies establish how much their patents are worth?

MM: They have internal methodologies. They also look at what other assets have been [fetching] in the market.

TC: How are you paid?

MM: We receive a transaction fee from the seller of the asset based on the value of the asset.

TC: How many patents are available to you right now?

MM: 60,000 as of today; we have two other big companies coming online that we haven’t announced that will [bolster that amount].

TC: Other than through press stories like this one, how do you plan to get startups into this marketplace? Who’s going to help you convince them they should do this?

MM: We definitely have to educate startups that this is available to them. We’ve spoken to many VCs and CEOs and investment banks and private equity funds, and there’s a general sense that a strong patent portfolio adds value to a startup. We see these patents as immediately accretive, too. It gives them defensive insurance and probably increases the value of their business as they are raising venture funding.

TC: How much ownership of the startups are these big companies expecting to get in exchange for their patents?

MM: It will be a fairly small level of participation. It depends in part on the company’s age. We’re looking to participate in venture-structured rounds — so we’re not talking about seed-stage companies but rather companies that are assembling A and B and C and D rounds. Most of the [big tech companies] want to cap their participation at 5 to 10 percent of any round, and it could be less, depending on the asset.

TC: You mentioned that some patents are depreciating in value. Is there a larger trend at play here?

MM: Patent [values] are down. There are a lot of assets out there. There’s some decent value out there for acquiring IP, but patent reform [is having an impact on] non-practicing entities [also known as patent trolls], who are less active right now.

Large companies are looking for operating companies to place their patents versus [selling them] to non-practicing entities. It’s a much safer place to divest their assets.

TC: I’m guessing this isn’t the first attempt to create this kind of marketplace.

MM: There have been other attempts at creating defensive patent pools, but they’ve involved giving up rights to check a book out of a library instead of own it, whereas this is a patent sale for equity.

This is new, this takes scale. We’re going to try to break down barriers to make this ecosystem work.

Source: https://techcrunch.com/2017/08/02/this-outfit-wants-startups-to-trade-their-equity-for-patents-from-big-tech-players/

Steps For Getting A Patent

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

Steps For Getting a Patent
These are the basic steps for getting a patent.

First, file a patent application which describes and claims the invention.

Then, respond to any official actions received from the U.S. Patent Office. If the official action is a rejection, then a response will provide arguments in support of patentability and possibly changes to the claims.

Assuming the application is deemed patentable (the majority are), then a Notice of Allowance and Issue Fee Due is sent. Upon payment of the issue fee, a patent will issue.

It is that simple. This whole process can take anywhere from 12 months to 36 months, depending entirely on the U.S. Patent Examiner to which the application is officially assigned.

A more detailed explanation is as follows.

Preparing the patent application
First, you provide details about the invention, and we prepare a draft application together with draft drawings, for your review. This draft includes the claims, abstract, summary of the invention, background of the invention, and detailed description of the invention. We make any changes or additions you wish to make, at no additional charge. We charge half of the fixed service fee in advance for this draft.

Read More >> http://internationalpatentservice.com/steps-for-getting-a-patent.html

Seeing red: N.C. State, Red Hat forge startup path in the Triangle

By: Caroline Curran 

Spoiler alert: The Triangle is not going to rival Silicon Valley – at least not any time soon.

But that’s not necessarily bad news, according to Tom Miller, senior vice provost for academic outreach and entrepreneurship at N.C. State University.

“While the level of innovation and entrepreneurship in the Triangle is growing at a rapid pace, most measures of entrepreneurial activity put us an order of magnitude behind Silicon Valley,” said Miller, who also is executive director of the university’s Entrepreneurship Initiative.

According to second-quarter data from the National Venture Capital Association, California ranked No. 1 in the nation for venture deals with 280 transactions, while North Carolina ranked No. 10 with 43 deals. If one were to consider patent activity in making this comparison, the Tar Heel State also falls short, Miller noted.

The U.S. Patent Trademark Office reported 24,350 patents granted in the Bay Area in 2015, versus 2,142 in the Triangle.

“We’re not catching up either,” Miller said about patent activity. “If you look at the rate of growth in patents over the period from 2000 to 2015, the Bay Area is growing at a faster rate, 64 percent versus 47 percent. Even when you factor in the population differences, the patents per capita in the Bay Areas are about three times that of the Triangle.

“While this sounds somewhat discouraging, it’s really not,” Miller said. “I recently visited with a group of N.C. State alumni working at Google in Mountain View, California. While it’s very exciting to be working at Google, one young alumna pointed out that while the pay for a young engineer in the Valley is not different from the Triangle, the cost of housing is not even comparable, nor is the rush-hour traffic.”

‘Think and Do’ at Centennial Campus

Some of the Triangle’s most successful startups launched out of N.C. State’s Centennial Campus, home to the college’s renowned engineering programs, the NCSU-UNC Joint Biomedical Engineering Program and, currently, 31 companies. This “Think and Do” mantra at N.C. State is evident in the companies that graduate, and has been decades in the making.

“Innovation has always been core to N.C. State’s DNA,” Miller said. “A number of us at N.C. State have worked over the past 20 to 30 years to foster a culture of entrepreneurship as a means to translate that innovation into products and services that benefit the world, and build North Carolina’s economy. When Randy Woodson came to N.C. State as chancellor seven years ago, he had a goal of doubling the number of startups launching from N.C. State annually.”

In the last four years, the number startups launched from university research tripled from four in 2012 to 12 in 2016, and that doesn’t account for student-led startups, Miller said.

“In 2010, we opened the Garage, a ‘learn by doing’ entrepreneurial space for all N.C. State students. There are currently 31 companies that started in the Garage currently in business in North Carolina,” Miller said. “I’m aware of four that have launched within the past three years that are venture-backed with a combined valuation of $75 million.”

Innovation and startup spirit at N.C. State isn’t restricted just to its Centennial Campus. There’s the Albright Entrepreneurs Village, which is a residence hall for entrepreneurial students from across the university. The Poole College of Management has an Entrepreneurship Clinic with HQ Raleigh, modeled after a teaching hospital, which allows students to work with HQ entrepreneurs. The university also recently launched an accelerator program specifically for student-led startups.

“To help with the lack of early-stage funding, we recently launched the Wolfpack Investor Network (WIN), an angel network focused on early-stage companies founded by N.C. State faculty, students, staff and alumni,” Miller said. “Since forming in late 2016, WIN has already looked at more than 70 companies and participated in seven funding deals. To top it all off, we’ve worked with the Alumni Association to establish the Alumni Entrepreneurs Network to keep all of our entrepreneurial alumni connected. These initiatives – and some I haven’t even gotten to – have contributed to building a strong entrepreneurial culture at N.C. State.”

Red Hat's startup success

While the Triangle may not be on the cusp of being the next Silicon Valley, there are plenty of home-grown success stories within the boundaries of the beltline. Take, for example, Red Hat. Founded in 1993, Red Hat grew its humble headquarters from Durham, to N.C. State’s Centennial Campus, and now owns the skyline of downtown Raleigh.

What was once one of the Triangle’s most promising tech startups, the multinational, open source software giant now has more than $2.4 billion in revenue.

“Red Hat is a longtime member of the Triangle business community, and we believe this growing, dynamic region is becoming a top-five hot spot for innovation and entrepreneurship,” said DeLisa Alexander, executive vice president and chief people officer at Red Hat. “We started out as a little company with a wild idea, so we understand many of the challenges that startups face. Now that Red Hat is a large, successful company, we’ve taken on a bigger role as a corporate citizen in the innovation community. We strive to be a catalyst in this ecosystem and help other businesses become the next Red Hats.”

Entrepreneurship, as a trend, is up in North Carolina, thanks to not only those who take risks on their business ideas but also because of incubator spaces, business-friendly local government entities and nonprofits dedicated to bolstering startups, Alexander said.

“Innovators and entrepreneurs are a key part of a robust business ecosystem, because they generate new ideas, challenge the status quo, and help us solve the big problems that our world is facing. In recent years, we’ve seen tremendous support in the local community – from universities to businesses to government to nonprofit organizations – for cultivating entrepreneurism.”

One area where the Triangle might begin to rival the firms of Silicon Valley is in talent.

Alexander said people want to work and live in Raleigh, which helps with talent recruitment and retention. Raleigh-Durham firms also have their choice of graduates from some of the country’s best universities right in their own backyards.

“As Red Hat grows, we increasingly appreciate having our corporate headquarters in a place where our people can have an exciting career along with the quality of life this area offers,” Alexander said. “Raleigh is also home to some incredible talent. As an open source company, Red Hat's culture not only fosters innovation and collaboration – it demands it. We’re always looking for people who will thrive here, so being part of a startup-friendly region is a tremendous advantage to us for recruiting talented people.”

HQ’s veterans initiative

In addition to quality of life, cost of living and a talent pipeline direct from top universities, North Carolina is also unique in that it is home to several major military installations and some 120,000 military members.

HQ Community and Carolina Small Business Development Fund (CSBDF) recently announced a partnership to offer veteran-owned small businesses free co-working space and innovative services to grow their businesses at HQ Raleigh, Charlotte and Greensboro. 

“Our goal with this partnership is to help military veteran entrepreneurs reach their business aspirations by offering them an ecosystem where they will thrive and find the necessary resources they need to succeed,” said Lenwood V. Long, president and CEO of CSBDF. “We are excited about our unique partnership with HQ Community and the opportunity to create economic opportunities for the veteran community to succeed.”

Source >> http://raleighdurham.crains.com/article/news/seeing-red-nc-state-red-hat-forge-startup-path-triangle

How to Patent a Business Method

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

A business method
Each “how to patent” subject is discussed in detail below. Here are ways to get a patent.

A business method cannot be copyrighted, but it can sometimes be patented. Specifically, the inventive steps of certain business methods can be patented, and because of this the patent can provide protection far beyond just the specific business method language used.

First, a drawing is made showing the most important steps of the business method as a flowchart diagram. It is usually not necessary to give every detail of the operation of the business method; instead, the main features should be illustrated. The business method should be protected by a utility patent application, since that will cover any type of business method language. This is also sometimes called a “regular” patent application. The business method steps can be explained in words and by the flowchart drawings.

This is a good point to mention that there is also something called a “provisional patent application” that gives patent pending status for one year, permitting a utility patent application to be filed at any time during that year. This is much less expensive, and is recommended when there is an urgent need to get something one file, for example just prior to a trade show or publication. Further below, there is a section called “How to patent using a provisional patent application.”

Here's a simple example showing how to patent an idea for a simple and amusing invention, where a business method is used. The simplest business method already in the public domain would be a lottery. Here, tickets are sold, and based on predetermined or later-determined criteria such as the drawing of numbers, determines winning tickets. For the moment, we aren't concerned with whether it has been done before, it is just an example. For now, the idea would be expressed in words, written just as above. These steps would be shown in a simple flowchart.

Next, a claim is added to describe the invention broadly, such as the following: Claim 1: A method for selling tickets and awarding prizes, comprising the steps of: selling tickets with indicia thereon; matching the indicia with predetermined or later-determined criteria such as the drawing of numbers to determine winning tickets; and awarding prizes to winning tickets.

Read More >> http://internationalpatentservice.com/How-to-Patent-a-Business-Method.html

Intellectual property strategies for startups

By: Benjamin Lehberger

Intellectual property protection is an important consideration for most startups. Obtaining intellectual property protection, such as patents, can minimize competition and act as a defensive mechanism against infringement claims from others. Intellectual property also can attract or solidify funding and partnerships. In formulating an intellectual property strategy for your startup, consider the following.

File early, and keep quiet
Your time to file for patent protection is limited and patents should be contemplated early on in development. In the United States, an inventor has a one-year “grace period” from first publicizing an invention to filing for patent protection, after which it is too late. However, you should not wait even that long. In 2013, the U.S. patent system switched from a first-to-invent to a first-inventor-to-file system. This subtle difference in terminology could mean dire consequences for those who delay seeking patent protection.

Under the old first-to-invent system, you could be the first to conceive of an invention and still obtain patent rights over an earlier filer by showing that you conceived first and continued to diligently work on your invention. Today, it is a race to the patent office. Regardless of who conceived of the invention first, the first one to file their patent application “wins.”

While patents are a valuable asset to any startup, they are only one piece of the puzzle.
Also, it is important to note that the one-year “grace period” to file a patent application is not available in most countries outside of the United States. If you plan to seek patent protection abroad, publicizing your invention at any time before filing a patent application could put your foreign intellectual property rights in jeopardy. Therefore, file early and keep quiet until you do.

File again as the invention evolves
As your startup continues to develop its product or products, consider each new feature as a possibility for patent protection. Startups that file one early patent application and stop may find that, once the patent issues, the product has moved far beyond what was in the original patent application. The product may end up being under-protected or not even covered by the patent at all.

It is important to reevaluate patent protection on a regular basis and consider filing on new features of the invention when applicable. If the product is evolving quickly, consider filing a provisional patent application or a series of provisional patent applications within a year before filing a utility patent application.

Do not wait for your patent to issue
Patents take time. While there are avenues available to expedite examination, on average it takes more than two years for a patent to be granted by the U.S. Patent Office. About 30 percent of patent applications do not make it through at all.

Having an issued patent may help to get funding for your startup and secure your place in your market. But, do not wait until your patent issues to commercialize your invention. Keep your startup moving forward and keep developing. Chances are, you will solve additional problems along the way, which may lead to even more important inventions. In the meantime, you will be building your brand, reputation and revenue.

Consider design patents
When discussing patents, the focus is often on utility patents, but design patents should also be considered as part of a well-rounded intellectual property strategy. In general, a utility patent protects the way a product is used and works, while a design patent protects the way the product looks. By the end of 2015, the U.S. Patent Office had issued more than 9.2 million utility patents, but only about 746,000 design patents.

Design patents can provide significant value as a supplement to utility patents or as a replacement when utility patent protection is unavailable. Software utility patents are still available in the United States. But, following the U.S. Supreme Court’s decision in Alice v. CLS Bank, obtaining utility patent protection for software-related inventions has become more difficult and less predictable. Design patents provide a viable option to protect certain features of software-related inventions, particularly the graphical user interfaces.

The term of a design patent is slightly less, 15 years from grant for a design patent versus 20 years from filing for a utility patent, but so is the cost. Also, design patents often can be obtained much quicker than utility patents.

Do not rely solely on patents
While patents are a valuable asset to any startup, they are only one piece of the puzzle. First and foremost, a startup needs a good product or service to be successful. The Patent Office awards patents for new and non-obvious inventions. Receiving a patent does not mean, however, that it is necessarily a good invention or one that anyone will want to buy. Make sure what you are protecting is worth protecting.

Second, build a unique brand and protect it with registered trademarks. A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. Having a strong and recognizable trademark can be extremely valuable for distinguishing you from the competition. And, unlike patents, a registered trademark never expires as long as you keep using it. Trademarks do not have strict filing deadlines like patents, but it is best to start early and have a trademark clearance search done to ensure that there are no conflicts that could prevent your use of the trademark.

Finally, depending on the type of business your startup is in, copyright and trade secret protection also should be considered in your intellectual property strategy. Talk to an intellectual property professional as you begin building your startup to discuss what types of intellectual property protection will work best for you.

Source >> https://techcrunch.com/2016/10/31/intellectual-property-strategies-for-startups/

How to Patent a Plant Species

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

A plant species
Each “how to patent” subject is discussed in detail below. Here are ways to get a patent.

This is very rare, but can be done! The inventive species is identified.

First, a drawing is made showing the inventive species. This is best done by a color photograph.

A claim or claims and an abstract would be added. And, standard text is added including sections titled: background of the invention; summary of the invention; brief description of the drawings; and an abstract of the disclosure. This part is not usually hard to do, but can be time consuming.

Then, a Declaration is prepared showing the name of the inventor and title of the invention. This is from a standard form provided by the US Patent Office.

Last, a cover page including a Transmittal sheet is prepared, listing what is being filed with the US Patent Office. The Transmittal page normally will include a check for the amount of the US government filing fee, and a postcard filing receipt. The check can be omitted, as can the signed Declaration, but in that case the US Patent Office will send a notice asking for those items along with a relatively small late fee.

The drawings may or may not be accepted as filed. If not accepted, the US Patent Office sends a notice, and sets a time period for submitting the formal drawings. A specially skilled draftsman normally prepares the formal drawings, since the US Patent Office has very specific and detailed requirements for the drawings. We work with a skilled patent draftsman, to provide the formal drawings.

Read More >> http://internationalpatentservice.com/How-to-Patent-a-Plant-Species.html

Southern University, Tulane law schools offer entrepreneurs free patent, trademark legal help

By: TED GRIGGS

One of the biggest obstacles startups face is protecting their intellectual property, but new law clinics at Southern University and Tulane University plan to change that by providing free legal help for patent and trademark applications.

"You have a lot of small businesses who end up running up against some type of legal barrier and they can't afford an attorney so they just give it up," said Mark Thurmon, a faculty member of Southern's law school and head of the SU Law Center's Technology and Entrepreneurship Clinic.

Both the Southern and Tulane clinics were certified this year through a U.S. Patent and Trademark Office program that allows law students, under an attorney's supervision, to file patent and trademark applications.

The law schools are among 25 nationwide certified to do both patent and trademark work. Some 29 schools have been certified for patent or trademark work. Altogether, more than 3,000 law students at participating schools have filed applications for 653 patents and 2,480 trademarks.

Thurmon said the Technology and Entrepreneurship Clinic fills a hole in the "entrepreneurial ecosystem."

The economic development strategy seeks to better align public policy, finance and support professions, among others, to support entrepreneurship. While LSU covers the cost of patent applications for students and faculty members' university-related research, the Baton Rouge and New Orleans ecosystems have been lacking the free legal support piece for the public.

"First and foremost, technology is getting more and more complex on the legal side," said Byron Clayton, president and chief executive officer of Research Park Corp., a nonprofit created to accelerate the Baton Rouge area's tech industry.

For example, drones that fly overhead and apps that access information on consumers' smartphones both raise questions of privacy and infringement of consumers' rights, he said. Meanwhile, the Patent Office has recently made it much more difficult to secure software patents.

"There are lots of lawyers around, lots of lawyers you can talk to and get an hour consult free," Clayton said. "But the thing is do they know what they're talking about?"

It's important to find some who understand these sorts of issues, he said.

The Southern University Law Center established the Technology and Entrepreneurship Clinic a year ago while awaiting certification by the Patent Office. The clinic couldn't do the patent and trademark applications at the time, so Thurmon and his students offered entrepreneurs help with general small business issues, such as nondisclosure agreements, questions about forming a limited liability company or corporation, and business filings.

So far, the clinic has worked with about 15 clients, including the Bayou Classic BizTech Challenge. In the contest, students from historically black colleges and universities must solve practical challenges submitted by industry or submit their own projects.

Thurmon's students helped review contest rules and processes and offered legal support.

Thurmon and his students also are helping William Barrios, founder of Theatermaker, with patent and trademark help. Barrios' concept is a modern, durable toy theater called Tatro. Barrios compares the magnetic mix-and-match scenery and movable magnetic characters to Build-A-Bear for toy theaters.

Without the free legal help, Barrios said he would have had a hard time pursuing the patent for Tatro.

"I was telling them in our first meeting that they have an amazing thing going …. I think they have an opportunity to fill a very, very large gap in the state. And I mean the state, not just Baton Rouge," Barrios said.

Read More >> http://www.theadvocate.com/baton_rouge/news/business/article_feadba0c-aabc-11e7-9149-1ff5f388c5ab.html

How to Patent a Provisional Patent Application

By: Michael J Foycik Jr. 
The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.

A provisional patent application
Each “how to patent” subject is discussed in detail below. Here are ways to get a patent.

A slightly better title would be “How to Get a Provisional Patent Application.“ That would be more correct, as explained below. It is easy to get a provisional patent application, which gives “patent pending” status but cannot in itself be “patented.” Instead, a provisional patent application holds the date (as the date of filing), protects the owner against later copiers, and permits later filing of a utility (“regular”) patent application.

Why get a Provisional Patent Application? It is less costly, and has a lower government filing fee, as compared with a utility patent application. It takes less effort to prepare, and needs no formal drawings and no signed Declaration.

Anything can be the subject of a provisional patent application. It provides defensive protection against later imitators. And, it can be the basis of a later utility patent application. It’s very useful to get a provisional patent application!

So what's the catch? The catch is, the provisional patent application lasts for only one year, after which the idea belongs to the public unless a utility patent application has been filed during that year.

So why file a Provisional Patent Application? If you are publishing the invention or showing it to potential investors or distributors or at a trade show, then a Provisional Patent Application will secure the date of filing, and can protect you against later imitators. How can it protect? It would prevent a competitor from copying your idea and patenting it themselves, then using the patent against you. Yes, that really happens sometimes! And, if the provisional application is followed up within one year by a utility patent application that issues as a patent, then it would allow you to seek damages in court.

Do you need to wait for a patent to issue before commercializing your invention? No, not at all! In fact, a pending patent application can be even more valuable than an issued patent in some cases, and a pending provisional patent application can be sold, assigned, or licensed.

What do you need to get a provisional patent application? You need a written description of the idea. And, it is helpful to provide drawings or sketches of the idea or invention, preferably with numbers that can be referred to in the body of the written description. The drawings do not need to be like blueprints; they can be simple or very rough, as long as they can be understood in connection with the text in the provisional patent application. And, it is not necessary to have a working model.

Here's a simple example showing how to get a provisional patent application for an idea for a very simple and amusing invention. The simple idea: add a blinking light to a pencil eraser. For the moment, we aren't concerned with whether it has been done before. For now, the idea would be expressed in words, written just as above, as the text or body of the application. And, since it is possible to illustrate the idea in a drawing, we would also add a sketch showing where the light should be placed on the eraser. The parts shown in the drawings should be numbered, for easy reference. The text would refer to the features of the drawings, and name the parts indicated by numbers, and also explain the function or purpose of the parts. What else should be shown in the drawings? The light should have a power source, for example a small solar panel or a small battery, and connecting wires should be shown connecting the power source to the light.

Read More >> http://internationalpatentservice.com/How-to-Patent-a-Provisional-Patent-Application.html

INTELLECTUAL PROPERTY – PATENTS, TRADEMARKS, & COPYRIGHTS

By: Joseph Devine, Jan 4, 2018 

Have you ever seen a product that you knew you had seen somewhere else before? Have you ever read an article that you thought sounded awfully familiar to something else you had read? If either of these cases are true, you may have experienced the stolen intellectual property on display.

When people think of stolen property, they usually and automatically think of a tangible object being stolen from one individual and transferred to another. In cases of stolen intellectual property, a copy is made of one idea and then used or altered, usually for a profit. Every year, thousands upon thousands of new creations hit the market and are exhibited to the public or in private meetings. The most types of intellectual property are patents, designs, trademarks, and copyrights.

Patents or Designs

The usual victim to intellectual property theft including patents or designs are businesses. A patent is an object or system that is protected under law. Patents also have very recognizable features that make the patent what it is, so when someone steals a patent it is usually apparent.

Certain designs belong to a certain system or machine and have the same recognizable features. If someone steals a design that is produced to perform a certain function and he or she profits off of this, he or she can be charged under the court of law for theft of intellectual property.

Trademarks

Branding is one of the most fundamental factors to a great marketing strategy. When a business owner gets his or her trademark stolen, the name of his or her business is diluted. Many people believe that trademarks only involve business brands. However, trademarks are anything an organization or business uses to represent itself. This means that phrases, graphics, or the symbols that makeup a company’s identity are also protected under law.

Copyrights

Original works also play a part in copyrights as well. Copyrights are any intellectual properties that are backed up by an author. Even if the work is not published, an author of a work is protected under law from theft. If somebody makes a copy of a work that is not his or hers, he or she may face a lawsuit by the owner of the property. He or she also cannot make a variation of the same work and pass it off as his or her own work. Common copyright works are:

– literary materials

– music

– artistic work

For more information on intellectual property and your rights, contact the Minneapolis business lawyers at the Skjold – Barthel, P.A. law firm.

Source >> https://articlesly.com/intellectual-property-patents-trademarks-copyrights/

Government Amends Patent Rules; Cheaper & Quicker Patent Registrations For Startups in India

By: Catherine Jose

Under the Startup Action Plan launched early this year, a lot of new amendments were expected to be made to the existing policies to ease out processes and reduce timelines.

Acting on the same, the Government has reduced the turnaround time to register a patent in India, while also making it cheaper for startups. A new ‘tatkal’ option also has been introduced that seeks to expedite the registration process for all new applicants, even the first timers.

In existing scenario, patent registration process took anything between 5 and 7 years. With the new rules in place Government plans to bring down the time to two and a half years by year end and one and a half by March 2018. ‘Tatkal’ would bring this duration down even further to expedite the process.

The fee as well has been cut down by 80% for the normal route, while the tatkal option will cost up to three times the price of the normal route, depending on the entity.

Under regular processing, the application fee can vary between Rs. 1,600 and 8,800, while in tatkal, application fee for startups and individuals has been brought down to Rs. 8,000, while for companies it is at Rs. 60,000.

Rajiv Aggarwal, Joint Secretary – Department of Industrial Policy and Promotion, said, “The move is aimed at popularizing India as a patent filing hub so that more companies file applications in India.”

How did the Government fix the patent registration process?
The Startup Action Plan was taken up the Government of the country to make India one of the best players in startups in the world and this vision was to ease out businesses done by startups in India.

After defining ‘Startups’, there was a need to improve the existing patent rules in the country to not only attract local startups but also global players. The major change in the rule is the fact that startups have been defined as ‘individual persons’ instead of companies in the latest amendment.

The Government has also introduced withdrawal of patent application without any extra fee to reduce the pending cases. There are about 2 Lakh applications pending for examination which have to be done with before a new set is examined.

Globally startups will also be able to enjoy the benefits of this patent rule, in case a startup feels their patent needs to be registered urgently, they can select India as International Search Authority or International Preliminary Examining Authorities to file applications in India before any other country.

Is it going to benefit the startups?
First things first, if the Government is speeding up a process, then be assured that it will necessarily benefit the individuals or the companies applying for it. The only downside I see is the haste in decision taking, which we feel should be left to the experienced officials.

Secondly, India’s patent applications came down to an odd 1,400 in 2015, while in the US the same number stood at 57,000. We cannot solely blame lack of innovation but also the sluggishness of the patent office. Startups cannot afford to wait for 5-7 years to get their patent registered, a lot can change in those 5 years.

Asia’s top three patent applicants China, South Korea and Japan could not register their patents in India and get fast-track responses to their technologies.

To get a patent in the US, it takes around 32 months and India is clearly going to shorten that duration, hoping to attract foreign startups as well. An excellent move from the Government to ensure startups do not lose their due credit in the world of technology these days.

Source >> http://www.toggletime.net/government-amends-patent-rules-cheaper-quicker-patent-registrations-for-startups-in-india/

HARDWARE PATENTS: WHEN TO START BUILDING YOUR PORTFOLIO

By: Hardware Massive, 01/02/2018

As patent agents, we hear a lot of reasons – good and bad – for filing patent applications and building patent portfolios. Phrases like “stop competitors,” “licensing revenue,” and “fundraising due diligence” come up frequently. However, despite the emphasis and value that many tech companies place on IP, there is still a great deal of confusion about when and how patents can be useful.

In this multi-part series, we will track a startup through its various stages – from the first concept to fundraising to exit – and dive into how patents may be useful or counter-productive at various stages of this startup.

1) Pre-Startup Phase

Initially, there is no company, no product, no data; there is only an idea in your mind. Around eight billion people inhabit this planet, many of whom have ideas, some of whom are actively pursuing these. The likelihood that your idea is patentable (i.e., truly novel and non-obvious) at this stage is not particularly high. But even if this idea is patentable, we have no data to confirm that anyone else thinks this idea is useful or that it will meaningfully impact their lives

In our last article, we discussed the interplay of 1) confidence in the patentability of an idea and 2) understanding the idea’s value when determining whether to patent it. At this early stage, we have insufficient quantifiable evidence to support arguments to patentability and value. Any patent application filed at this stage is likely to either focus on the wrong technology or describe the right technology in an incomplete – and therefore less patentable – way. In other words, your idea and your company are just not fully baked at this time.

What you need next is – feedback from others regarding perceived value of your idea; you alone cannot impartially evaluate your own ideas. At this early stage, the best validation of your idea comes in the form of a co-founder who believes as strongly as you do in the idea and who is also willing to take the risk to execute it. It is your vision and your ability to clearly communicate that vision that will attract the right co-founder. Together you can build a business plan, prototype the tech, and develop tests to validate your assumptions. You can see why patents aren’t even under consideration at this stage of the life of your startup.  Patents are simply not going to help attract an ideal co-founder or answer business- and tech-related questions.

TL;DR – Tech entrepreneurs (often) need strong, complementary cofounders. Patents simply don’t help attract ideal cofounders. Early / pre-seed companies should probably skip considering patents and focus on building a team.

2) Pre-Seed Phase

So you found a great cofounder – one as audacious as you are – and now you need an influx of capital to fund development. Maybe your friends and family have invested in addition to your own personal cash. Maybe you are targeting individual angel investors, an angel group, or even a micro-VC to fund a seed round. Maybe you are applying to an accelerator or incubator. At this stage, you are targeting checks starting at a few thousand dollars up to $50k or even $100k. With few exceptions, your investors want to: vet your team and your vision, and review technical or user data that validate key assumptions of your business plan.

Beyond questions related to patent strategy (i.e., what the startup may patent and when applications may be filed in the future), patents are rarely an integral part of these early-stage fundraising conversations. There are good reasons for this: many pre-seed investors understand that the company is young and that capital is best invested in the development of the product. Moreover, the cost to hire a patent firm for patent due diligence – which may be upward of $20k per deal – is often too large a percentage of the check that any one of these investors is willing to write at this stage, which reduces the likelihood and necessity of seed-stage patent-related due diligence even further.

What you need next is – a refined vision, data supporting fundamental assumptions of this vision, a path to revenue and/or user acquisition, and technical progress. Spending time and money to file patent applications at this stage indicates that you are allocating limited resources away from development and user testing, which may slow technical progress, thus delaying your fundraising efforts.

TL;DR – Patents rarely help a startup close a seed round. Pre-seed companies are often better off allocating resources to development and user testing than to patents since the former directly impacts seed-stage fundraising whereas the latter does not.

3) Post-Seed Stage

At some point, however, investing in a patent portfolio may yield very positive returns. In fact, we can quantify this trigger. Over the past several years, we have found that patents become a viable option for a startup once it has raised between $250k to $300k. Having raised this amount of capital indicates that the company has collected enough data to understand the value of its tech and has made sufficient technical progress to isolate something patentable – the two components needed to justify filing a patent application. Furthermore, given the average cost per provisional and non-provisional patent application in the United States, a startup that has raised this amount of capital could strategically file one provisional application + one non-provisional application for less than 5% of its annual budget, which is a reasonable expenditure for an earlier-stage tech company.

But why invest in patents at all at this stage?

What you need next is – a strategic patent portfolio. For a startup working toward raising institutional capital, a patent portfolio says, “We are a technology company, and we are actively taking steps to maintain ownership of our technology.” More specifically, a patent portfolio that contains solid, strategic patents directed to core revenue-driving and user-facing technologies communicates that: 1) you understand the long-term impact of your space; 2) you are capable of finding the right partners (e.g., a patent firm) to help you build value; and 3) you are capable of managing limited resources to create something significant.

TL;DR – A founder who is able to demonstrate that her company has: a strategic vision,  made significant technological progress, a roadmap for go-to-market and user acquisition; and a patent portfolio that aligns perfectly with progress to date and a future roadmap is pitching something powerful.

4) Institutional Capital

For institutional investors who are obligated to return for their limited partners, patents can also function to de-risk deals. Consider this: Over the past several years, patent portfolios have sold in secondary markets for roughly $250k per patent on average, with peak sales over $1.6M. We also have also heard from several serial entrepreneurs that their startups’ individual patents were valued well into the millions of dollars at the time their companies were acquired. When we consider that the average cost per patent in the United States is approximately $38k, we may be looking at 6x, 10x, or even 40x returns when a startup invests in a strategic patent portfolio. These are the kinds of returns that are sought by institutional investors. Even if a company folds, the patent portfolio remains a valuable asset that itself can be sold to recuperate investors’ losses. Patents can function to 1) boost a company’s valuation during an exit, or 2) as an insurance policy for investors during the dissolution of a company.

TL;DR – Once a company reaches fundraising and development milestones, patents become a powerful tool for building value and de-risking deals when raising institutional capital.

Source >> https://hardwarenews.wevolver.com/patents-portfolio/