USPTO and NIST Launch Online Intellectual Property Awareness Assessment Tool

AUGUST 2011 – ISSUE NUMBER TWELVE  "INTELLECTUAL  PROPERTY  MYTHS"

INTELLECTUAL PROPERTY MYTHS
by Thomas A. Gallagher:

The Poor Man's Patent:

Some say if you describe your invention in a letter to yourself and don't open it, you have some level of protection.

Some call it the poor man's patent.

All I know is that it is nonsense and can actually cause you damage by documenting a date of invention and acting as evidence that your failure to file a real patent application was due to abandonment, suppression or concealment of your invention. Save the cost of the stamp and use the money to call a patent attorney.

If I don't make money on the copies, I am not liable for copyright infringement

Some say it is not an infringement to make a copy for your own personal use.

Some say that as long as you don't profit from your copying, you are safe.

All I know is that this is completely false. Everyday some entertainment industry copyright holder sues an individual for downloading and sharing files on P2P networks like BitTorrent. Nobody sharing those files is making money but they will be liable to the copyright owners for hundreds of thousands of dollars.

If my trademark is not identical to yours, I'm OK

Some say that if my trademark is not identical to yours, I am not infringing.

Some say that in order to infringe, the marks must be identical and the goods must be identical.

All I know is that this is totally incorrect! The test for trademark infringement is "likelihood of confusion" and this does not require identical marks or identical goods. You owe it to yourself and your business to get a qualified opinion before you start using a trademark (brand) or even a company name.

A provisional patent will protect me while I raise funds for a regular patent

This is a dangerous myth, which is popular among the community of first-time novice inventors. It is often accompanied by the myth that you can prepare your own patent application by following some guidelines you found in a book about how to prepare a patent application on your own without help from a professional. This myth is also perpetrated by "invention submission" and "invention development" companies.

First, there is no such thing as a provisional patent, only a provisional application, which never becomes a patent.

Second, in order to be worth anything, the provisional application needs to be written with the same care as a non-provisional. Do-it-yourselfers and invention submission/development companies rarely accomplish this.

Third, one of the first things you learn in law school is that "a lawyer who represents himself has a fool for a client." Corollary: "a non-lawyer who represents himself in a legal matter has a fool for a lawyer and a fool for a client."

How much do you think your invention is worth? A million? More? Ten million? More? So in order to save a few thousand dollars in legal fees you are going to entrust the preparation and filing for patent protection of the multi-million dollar invention to someone with no legal training and no knowledge of patent law?

If it's on the web, it's in the public domain; corollary: if it doesn't have a copyright notice (e.g. ©2011 Thomas A. Gallagher) it is in the public domain

I don't know how this first myth started, but there is an outspoken group on the web preaching "information must be free" and the concept of "copyleft". Actually, information is free unless it is classified as a trade secret or a government secret. Copyright does not protect information; it only protects the creative presentation of information.

Since the U.S. adhered to the Berne Convention in the 1970s, no copyright notice is necessary. Thus, you should assume that all creative expressions on the web are protected by copyright unless otherwise labeled. For your own works, a copyright notice won't hurt. You don't even need to register your copyright before you may affix the notice.

I need a patent before I can make and sell my invention; corollary: a patent grants me the right to make, use, and sell my invention

Wrong on both counts. Again, I don't know how the first myth started, but I often get asked by novice inventors, after we file a patent application, whether they can sell their invention before the patent issues. Of course you can, you can even sell it before you file for a patent, just be mindful that in that case you will be giving up foreign filing rights and causing the clock to start running for the one-year deadline during which you must file for US patent protection, if you still want it.

The second myth buster is often a great shock to first-time inventors, sometimes even to seasoned inventors. You might want to sit down before you read the next sentence. A patent issued to you does not give you the right to make, use, or sell the patented item! A patent only gives you the right to exclude others from making, using, or selling the patented item. Your invention, though patentable, may very well infringe an earlier patent. But, there is a simple solution to this problem called "cross licensing" and this is one of the reasons large corporations hate "patent trolls",because there is no cross-licensing opportunity with patent trolls.

My next newsletter will be entitled "The Truth about Patent Trolls". In the meantime, enjoy the rest of the summer.
If you would like more information about any of the matters in this newsletter, including the recent IP news or recent accomplishments listed on the right, contact me directly any time.

©2011 Thomas A. Gallagher

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