I picture a brand as a pegboard and every association someone makes with the brand is pinned to it.

For example, lets say I’m selling balloons. Lets say they are really good balloons, but the package just says “Steve’s Balloons,” and has pictures of clowns, noisemakers, and balloons. It’s your nephew’s birthday and you need to buy some balloons for the party. You see my product in the store, you buy a few packs, and you love them…at least as much as one can love balloons…because they’re very high quality and can hold helium for a week before they droop. Party goers actually comment on how the kids can’t pop them and how they love the unique colors.

Then, a year goes by and you need balloons again. You want to get the same ones, but you don’t remember the name on the package, so you go to a party supply store and look at their selection. Most of the balloons come in similar packages, with pictures of clowns and noisemakers, so you grab a couple packs and drive to the party. Everyone is looking forward to the awesome balloons, but you didn’t buy mine, you bought some low-quality, cheap balloons. A quarter of them pop while they’re being blown up, and the others let their helium leak out within a couple hours. You’ve ruined the party, your family stops talking to you, and your nephew grows up to have the distinction of being on the show Cops! a record-breaking number of time.

Ok. Maybe that’s a bit of a stretch.

What I’m trying to get at is that if I don’t have something memorable about the packaging or name of my product, people won’t remember it. Whatever goodwill my balloons should have earned from the first party disappeared, because I didn’t provide anything to pin it on.

Instead, if my product name is, I dunno, Battlenova Balloons, and my package has a logo of a bear riding a dragon and throwing balloons at a tiger wearing a helmet and standing on his back legs…well, that’s something you’re going to remember. When you like the quality of my products, you’re going to associate it with the unique name and packaging, and we’ll both be happier next time you need to buy balloons.

For example, right now the Utility Search fee is $600 for a large entity, $300 for a small entity, and $150 for a micro-entity. Not every fee gets discounted, but a lot do; enough to make it worth the additional bother for just about everyone.

“Steve, what do you mean ‘just about everyone?’ Why would I pay more than I have to? Are you one of those people that sends in extra with your taxes?”

Well, there are at least two reasons to consider paying the small entity fee instead:

First, if one of the inventors is close to the income cut-off it might make sense to err on the safe side. I’m sure that if a micro-entity patent gets litigated, one of the attacks will be against the micro-entity status. If someone is fudging their income a little bit, or even makes an innocent mistake, that could be disastrous. We’re not exactly sure what will result from an improper micro-entity assertion at this point, but do you want to be a test case? There’s no need to risk your patent over a couple hundred bucks.

Second, asserting micro-entity status might be a signal to infringers that you don’t have the resources to find, or go after, infringers. Or, that you don’t have the resources to manufacture and market your invention so you might sell the patent for less than it’s worth.

There are other reasons I can see coming up, such as a co-inventor not wanting to disclose to everyone else how much they made last year, or if just not being worth the bother of getting the paper work ready to sign. Your lawyer might not charge for one or two such filings, but if there are many inventors it will take time to get everything in order.

So, if you are a micro-entity, you will probably want to save a few hundred on your patent application, but the savings shouldn’t be the only thing guiding your decision.

As soon as you create something, or more specifically, as soon as it’s “fixed in a tangible medium of expression,” it’s copyrighted. Really, it’s that simple. Hum a song…well, that’s not “fixed in a tangible medium of expression,” so no; but hum it into a recorder and it’s copyrighted!

Easy, isn’t it? Deceptively easy (ba-da-dum-duuuuummmm).

The thing with the insta-copyright is that there isn’t much you can do to enforce it. Sure, you can label it as copyrighted, and there’s no great reason not to do that, but you’re options are limited if someone does copy you. First, you can’t even take it to court until you register it with the copyright. And then, your damages are probably going to be nothing more than actual damages and an injunction. In most situations, that’s not even worth the fling fee to start the lawsuit.

If, on the other hand, you take the extra step and spend a little money registering your work with the copyright office you can instead opt for statutory damages if someone nicks your work. Statutory damages will usually run between $750 and $30,000. Suddenly, it makes more sense to go after someone for stealing your work. Especially since you might also be able to recoup your legal fees.

So, lets say you post a photo to your Flickr account and some company see it and uses it on a shirt (that’s happened). If you didn’t register your copyright, but you take them to court and win. Your damages are based on what you lost, and what they gained, because of the infringement. If you weren’t selling your own copies of the photo, you probably don’t have any lost profits. Pretend they sold 1000 shirts at $20 each; then we’ll start by saying they made $20,000 off of your work…but they get to deduct their expenses so deduct the cost of the shirt, printing, shipping, some portion of overhead, and wind up with some modest profit. Then they show sales figures of similar shirts sold in the same period and argue that people were just buying the shirt itself, and that no one bought it just because of your photo. You’ll get to present evidence showing that people did buy the shirt because of the photo and the judge will decide how much of the company’s profit can be attributed to your photo…which is probably a modest amount in this hypothetical. Then, subtract how much was spent on litigation, how many hours your attorneys worked on the case, what it cost to get expert opinions about damages, and you’ve probably lost (a lot) of money.

If, on the other hand, you registered the copyright, you get to skip much of the damages calculation by taking the statutory damages. Then, the court will look at how many shirts they sold, and award you somewhere between $750 to $30,000. It’s also possible that they judge can go above that for willful infringement, and they didn’t accidentally download from your flickr, so damages can be as high at $150,000. It doesn’t matter if they only sold one shirt, or not shirts, or if they lost money on the shirt. In addition, the court might make the other side pay your legal fees. That’s a much better deal.

But what does it cost to register a copyright? Not a whole lot. If you can file online, and willing to do it yourself, $35. If you want to have your attorney do it, probably a couple hundred. Of course, there can be complications, like if someone else took the photo with your camera, or if you’re a web designer that too the photo for a job, or if instead of a photo we’re talking about a series of photos you took for a book. But, if you want to register a work you did yourself, it’s pretty easy.

As a patent attorney and cook, one of the most common questions I get is “can I copyright/trademark/patent my recipes?” The answer is a qualified “no.” but you can protect them as trade secrets.

Copyright protects artistic expression, so it can protect a story or narrative attached to a recipe, but won’t give any protection to the recipe itself. There is an argument that cooking is an art so such artistic expression should be copyrighted, but that won’t work. A particular dish may be art, delicious art, but its recipe is at least partially useful in that it instructs a reader how to make the dish. In cases where the artistic elements of a piece cannot be separated from the useful elements then the usefulness trumps and copyright will not protect it. Useful items can be protected by patents, but probably not recipes.

Unlike copyrights, patents undergo a ridged examination proceeding and must satisfy a number of requirements. For recipes, the big issues are probably going to be novelty and obviousness. That muffin recipe might be great, it might be the best muffin I’ve ever tasted, but based on all muffin recipes to have ever existed isn’t there some prior art that teaches the same thing? Or maybe two or three other recipes that teach certain aspects of the recipe? It seems to be a very difficult requirement for a recipe to meet. Another requirement that could be a problem is utility, patents will only issue for useful goods. Although the level of usefulness needed is very low, I’m not sure that “delicious” would cover it. On the other hand, some recipes are patentable, such as this one for savory baking chips and this one for treating chest pain with lime juice. Granted, the lime juice patent is not much of a recipe, but it’s one of my favorite patents and I wanted to use it. It has expired because the patentee didn’t pay a maintenance fee, so if you feel a touch of angina coming on and want to try sucking a lime, go ahead. Let me know how that works out for you.

Trademarks also don’t fit the bill. Trademarks identify the source of some goods, even if you printed an entire recipe on a t-shirt and tried called that your trademark, that wouldn’t stop someone from taking your recipe and using it. It might stop them from being able to sell their own t-shirts marked with the same recipe, but why anyone would want to do that is beyond me.

What one is left with is trade secrets. As the name implies, trade secrets are secrets. They have served Coca-Cola and KFC quite well over the years. As an aside, I once knew someone that did some engineering work for KFC. He was able to automate 10 of the 11 secret herbs and spices, but the last one was added manually by a guy that would come out with an unmarked brown sack containing the most secret of the secret ingredients. Trade secrets won’t help you at all if someone figures out your recipe, just look at how many copycat recipes one can find, so some extraordinary measures are taken to keep these secrets.

So, the bottom line is, if you don’t want people to know your recipe, don’t tell them.

Everyone has their own chili recipe, and this is mine…so, on to my non-patented, non-trademarked, non-copyrighted chili recipe:

Open Source Chili

from Steve O’Donnell (http://www.3cpatents.com)

time 4 hours
yield 6 servings

ingredients:
3 cans beans
1 t dried thyme
1 t dried oregano
1 t dried coriander
1 t dried red pepper flakes
4 t cumin powder
3 garlic cloves minced
1lb beef chopped
2 beef bouillon cubes
4 slices bacon chopped
1 red pepper chopped
1 onion chopped
4 oz mushrooms chopped
1.5 cup ketchup
1 tomato chopped
3 c water
4 oz corn chips

Directions:
1. Throw everything into a crockpot and cook on low about 4 hours or until done. Really that’s it. You don’t need to pre-cook the meats. A couple minutes of prep, and it all cooks together. No critical time limits, no tricky finishing sauce.

Notes:
1. I trim the beef, usually a tip steak or something on sale and add it raw to utilize the rendered fat, lean hamburger can also be used, or any other protein you like. The bacon also goes in raw.
2. Purists will balk at the beans, and the veggies. So…don’t add them. The strength of chili comes from the seasonings. The base ingredients don’t matter as much. If you don’t have onions, red pepper or mushrooms on hand, but do have carrots, radishes and cabbage, you’ll still have a good chili.
3. The corn chips are the “secret.” They disintegrate and add body and flavor. Without them, or masa flour, you get chili-soup instead of chili. I prefer Fritos, because if you buy a bigger bag you can make Frito Pie. If you want to use masa flour add about a half cup.
4. I’ve also made this vegetarian by using a cup of barley instead of the beef (really, you’d be surprised how well that works) and a splash of liquid smoke instead of the bacon.

Chile pepper image from Forest and Kim Starr

That groove was inspired by Marvin Gaye’s Got to Give it Up. That’s not me saying that, it’s Robin Thicke. But, does it rise to copyright infringement?

Marvin Gaye’s family seems to think so.

There was some posturing between the camps and according to Billboard, Thicke offered a settlement to the family to smooth over the issue, but that was rejected. Thicke then as requested a declaratory judgment that the song does not infringe Gaye’s copyright.

A request for a declaratory judgment is kind of a ‘negative lawsuit.’ Here, it’s possible that another settlement offer would be accepted, or not, or the Gaye family might not have sued, but instead of waiting to see what happens, Thicke has asked a court to settle the issue before it comes to a head. This is often wise because it puts Thicke on the offensive and lets him pick a court that’s convenient and maybe more sympathetic to him. Of course, I’m willing to bet that Thicke and his label would be able to defend anywhere Gaye’s family might have sued.

These types of controversies come up a lot. Music and art in general, builds on what has been done previously. Huey Lewis thought Ray Parker Jr.’s Ghostbusters theme nicked it’s main riff from I Want a New Drug . Aza thought Call Me Maybe stole from her Hunky Santa.

So, what should have Robin Thicke done? Well, for one thing, he sure as hell shouldn’t have said he was thriving off the riff from Got to Give it Up. That was just dumb. I don’t think he should have asked for permission first, that’s asking for trouble. If they called me in to ask about the Marvin Gaye song before Blurred Lines was released, I might have suggested getting an opinion of non-infringement, just to hold onto in case it got to court. Really, I can’t think of what else I’d have told him. Sometimes, especially in something as ill-defined as matters of copyright infringement, you just have to go ahead and see what happens.

Now, if you have a question about copyright, who you gonna call?

Let me know what you think. Is Blurred Lines too close to Got to Give it Up?

Blurred Lines (unrated, but I’d call it R-rated)

Got to Give it Up

Anyway, they shot a video that used some footage of a graffitied wall, and they reused some of that footage in the video backdrop for their tour, and on the MTV VMAs. The trouble is that the wall included an image of Scream Icon by Dereck Seltzer.

Mr. Seltzer didn’t much care for this, which I think is understandable, so he sued.

After the usual lead-up, the Ninth Circuit agreed with the district court that Green Day’s use was “Fair” (those quotation marks mean that “Fair” is being used as a term of art, not that it was necessarily “fair.” Of note was that Green Day wasn’t really commercializing Scream Icon, that their use was “transformative,” and that they hadn’t diluted the market for the image. The panel didn’t think it was crazy to bring the lawsuit though, so they didn’t award attorney fees to Green Day.

So, lets say your art shows up in a music video or movie, or something else, even though it isn’t the main feature or the work, what should you do? Also, lets say you’re a filmmaker shooting externals, should you try to get releases from everyone that has rights to something showing up on the skyline, can you even track down everyone that might have some rights?

There aren’t really great answers I can put here, other than cop-out and say that the analysis is going to depend on the exact facts—which is true, but not very satisfying.

Generally, if your artwork is used as background, you don’t have the best case. Now, if the filmmaker really focuses on the work and makes it part of the story, that might be different.

In either situation, if you haven’t registered your copyright, it might not be worth the bother of doing anything.

The way it works is that inventors approach these companies for a free evaluation, they’re told that their invention is patentable and could be a huge seller…but to get started, the company will need $10k or more to get started. After being strung along, and paying additional fees along the way, the inventor winds up with nothing but a flashy binder full of empty promises. Usually the thing that finally gets people to walk away is being asked for several thousand more to finally file a provisional or a design patent application.

Patent law is touchy and certain missteps can create a complete bar to getting a patent to issue. The worst part is that the disclosures made to the company, and by them to other companies might actually create a bar to getting a patent.

That’s not to say that there aren’t successes or that all such companies are shady, people that have great experiences probably won’t call to tell me about them.

It’s not just me, the FTC also cautions people about these firms.

If you really want to use one of these firms instead of finding an actual patent attorney, there are some questions you should ask before you sign anything, and certainly before you pay anything:

1. Will a patent attorney be drafting the application?
2. Will they be filing a provisional or a non-provisional application?
3. Will they file a utility or a design patent?
4. What exactly are you paying them for (approaching companies on your behalf, patent prosecution, design, manufacturing support, etc)?

You should also call around a little and see what past clients, the BBB, the FTC, etc, are saying about the company. Keep in mind, people that are angry are more likely to say something negative than happy people are to say something positive, so online reviews are usually skewed.

If you don’t like what you hear. Call me.

We used to have two tiers, small entities and large entities. Small entities were those that didn’t have more than 500 employees (that’s a rule of thumb, really, to nail down the exact number you’d have to dig through the Small Business Administration regulations to see what they say about the industry) and hadn’t assigned/granted/etc to another that wouldn’t qualify as a small entity. Large entities were everyone else.

Now, an inventor qualifying as a micro-entity if they made less than about $150k over the past year (that number will change each year), haven’t filed more that four US non-provisional applications (unless those were assigned to a previous employer), and haven’t transferred, or under an obligation to transfer, the patent rights to a small or large entity. If a person qualifies, and fills out the proper paperwork, they get special pricing at the patent office. For example, if I file a non-provisional patent application for a small entity we have the basic filing fee, a search fee, and an examination fee (at least, there might be more fees), and the total for that, as of May 21, 2013, is $730 (if electronically filed). The same for a micro-entity is $330.

Is that $400 worth it?

Most people are going to go through a patent attorney to prepare their application and are probably going to spend several thousand just on drafting. $400 is $400, and although that might be under 10% of the total bill, it’s still worth thinking about.

On the other hand, one thing you don’t want to risk is understating income to sneak in under the amount. The patent office might not check, but you can be pretty sure that if you ever have to enforce the patent someone will look at very closely. Potential licensees or assignees might look into that also. So, if you’re anywhere near the income limit, I’d want to stay on the safe-side and pay the small entity rates.

Also, the claim of micro-entity status becomes part of the patent’s public file. A competitor or possible infringer can find that and might think that because of your size they can ride roughshod over you. So, by taking micro-entity status, you’ve cheated yourself out of some of the chest-puffing that can be so integral to business.

Of course, every case is different, but this is something you should ask your patent lawyer about.

Lasagna is a great food to bring out when you want to impress people. Part of that is because everyone likes it. I mean, really, what’s not to like about a gooey slab of pasta covered in cheese and stuffed with meat and sauce? Nothing. There is nothing to not like about lasagna. But lasagna is more than the sum of it’s parts. You could use elbow macaroni and mix all the ingredients together and it would still taste the same, but it wouldn’t be the same.

The magic of lasagna is in the layering, and most people think the layering has to be a herculean effort. It’s not, in fact, lasagna is pretty easy, but don’t tell anyone that.

Many assume the noodles have to be cooked and cooled before construction can begin, making the spreading of sticky ricotta to be a huge hassle. They can be cooked before hand, go ahead, make more work for yourself, but they don’t have to be. You also don’t need to buy special “no-boil” noodles, any dry noodles you like will work.

Lasagna is also a favorite recipe of mine because it’s a great way of cleaning the fridge. Leftover ingredients can be substituted or added to a basic recipe, and really, between the pasta and cheese, it’s all good. This particular recipe started with me trying to think of something to do with frozen chicken breasts. I had lasagna noodles, mozzarella, ricotta, and Parmesan, so I thought I’d make lasagna, but I didn’t have spaghetti sauce. I thought about using an alfredo sauce, but that’s more indulgent than I really need to be on a Tuesday night, so I made this up instead.

This lasagna has five parts, the sauce, the ricotta mixture, the chicken, the mozzarella, and the pasta, that all come together during construction.

The sauce:

2 cups milk
2 cups chicken stock
5 T flour
3/4 t salt
2/3 t pepper

Blend together liquid and flour, set aside

The ricotta mixture:

16 oz ricotta
1 egg
2 T Italian seasoning (or some blend of basil, oregano, etc)
small onion, chopped
1-2 cloves garlic, minced

Mix together, set aside

The chicken:

1-1.5 lb chicken breast, poached and shredded
packet spaghetti sauce mix

Toss sauce mix with the shredded chicken.

The mozzarella and the pasta:

16 oz mozzarella
4 oz Parmesan
1 package dry lasagna noodles

Mix the mozz and parm together.
In a 9*13 pan, you should get 4 layers of noodles out of a box. Three of those are the floors, and one is the roof. The floors each get a third of the ricotta and a third of the chicken. Each of the four layers gets mozzarella/parm. Normally, if I was using a proper pasta sauce, I’d put a quarter of that on the bottom of the pan first, and then put a quarter on each of the three floors, but the sauce I’m using is thin enough at this point to find it’s way between the layers.

To assemble, pick up one of the noodles, spread a layer of the ricotta mix on it like a cracker, and put it in the pan, cheese side up. Repeat until you have a layer. Distribute a portion of the chicken and a portion of the mozz/parm onto the layer, and start over. The top layer of noodles (you might not have enough for a full layer) gets the remaining mozz/parm. You should have run out of ricotta and chicken by then. Pour the sauce mixture in, probably in a corner to avoid disturbing the top layer. Cover it with foil and bake at 375 for 75 minutes (or hotter for less time, it doesn’t particularly matter, the foil will keep in steam and give you a pretty wide window of when it’s done). When you take it out, the noodles on the top should be a little underdone. Leave the cover on until service so it cools evenly. Lasagna, especially the no-boil recipes, benefit from a long rest to firm-up. That makes it easier to cut and serve, and gives the noodles the chance to absorb any remaining liquid.

Don’t obsess about equally dividing up the ingredients for each layer. Things tend to work themselves out as it cooks.

A note on the poached chicken. I put the frozen chicken breasts in cold water and put it on the stove on low for maybe an hour. By then, the water and chicken are maybe around 100 degrees F and the internal temperature of the chicken will follow the water pretty closely, meaning that when I get the water to 170, the chicken will be almost 170. At that point, turn the burner on high and get the water to 170, then shut it off and let it sit for a couple minutes. Remove the chicken, let it cool enough so you can touch in, then shred it with your fingers. You could heat it to boiling, but you’ll wind up with dry chicken and everyone will hate you.

Kickstarter lets people court small investors. A person posts something about their project, like a prototype or description, and people interested in the project pledge some amount to help it get going. There are usually awards given at different pledge levels, so if you pledge $25 you might get one of the products, for $50 you might get 3, for $100 you might get a signed copy and a backrub from the entrepreneur. The offerings are different for each one. I’ve picked up some pretty cool things by pledging, and I’ve had the pleasure of helping someone obtain startup funds without having to become a major investor.

There are a few nits in patent law that work against using Kickstarter, or something similar, to raise the funds for a patent application. In particular 35 U.S.C. 102 contains a number of things that can bar a person from getting a patent. The worst for Kickstarter campaigns are that a public use or sale before an application is on file will extinguish the patent rights.

Now, the questions are, is a Kickstarter video showing an invention in use a “public use?’ and is rewarding a pledge of $X with one of the widgets a “sale?”

I don’t know. This little piece of law in only a few months old and we really don’t know how courts will interpret it. I don’t think a typical Kickstarter campaign should ruin a person’s ability to get a patent, and there are some to arguments that support that, but a court could easily disagree. It will also depend on the exact facts, if the video details how something works, that’s different than if the video shows the exterior of the item. To really get it ironed out, a case would probably have to go through a district court, then the Federal Circuit Court of Appeals, and then through the Supreme Court, and if you’re raising money on Kickstarter, you might not have the hundreds of thousands of dollars needed to get your case through all of that.

It’s a much, much safer and surer path to have an application on file before starting a Kickstarter campaign. Most people would probably benefit from a provisional patent application in this situation. If the campaign is a hit, a non-provisional application can be filed, if the campaign fails, then at least the inventor isn’t out the full cost of a non-provisional patent application.