Sometimes we IP attorneys get a bad rap. We sometimes have to tell other people they are infringing on our client’s patent, trademark or copyright. No one likes getting a cease and desist letter, no matter whether its politely written (always my opening approach) or downright snarky. Whether the sender has a valid point, or is just calling your bluff, once the letter gets sent, you have to deal with it (even if deciding to ignore it).
But the recent case of singers Sam Smith and Tom Petty illustrate a very clever way of heading off at the pass what could have been a very long and contentious legal battle over songwriting credits. It’s all about the parties’ attitude. If you listen to Sam Smith’s “Stay With Me,” the chorus does in fact sound just like several key bars from Petty’s 1989 hit “I Won’t Back Down.” It does not take a degree in music to understand this. Credit Tom Petty and his camp (unsure if lawyers were involved or not) for pointing this out to Smith and asking for a songwriting credit. Smith agreed and everyone was able to move on with their lives. Battle over.
Petty further clarified on his website:
“About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all.“
We should all follow this example.
Because my daughter (she of insect trapping fame) is equally obsessed with National Days of the year, I bought her a calendar that actually shows these. http://nationaldaycalendar.com/ #nationaldaycalendar #fignewton #trademark
On Friday, we celebrate national Fig Newton Day, in honor of the soft, sweet cookie, and yes, there is a trademark for it. It was just renewed for another year, too. Here is the latest iteration:
Scientists at the University of Rochester invented these clever lenses that enable the viewer to see “through” solid objects. Take a look:
(and yes, they filed a patent application, but no, it is not yet available for public inspection) #invisibilitycloak #patentpending
It had to happen. For the pet who has everything:
Is getting a patent and “monetizing” it complicated?
A neighbor forwarded me an article by Priceline founder and serial inventor Jay Walker, from Wired magazine. He was lamenting the state of patent law, saying the little guy can no longer make money off his inventions. The patent process is too expensive, and too difficult to research.
Walker seems to be saying that the only way to make money on patents is to buy the rights to patents no one is enforcing, then turn around & enforce them against unsuspecting small companies. That definitely goes on. I’ve had people ask me to help them write the lawsuits. Because I represent so many startups, I can’t in good conscience do this.
But others do. Patents are, at their core, a commodity which has value. They can be bought and sold much in the same way as stocks and bonds. They can be licensed. They can also be leveraged against competitors. To most of my clients, their inventions are their babies and would never think of them as something that could be traded in an open market. Walker has created what appears to be an online brokerage house, just for patents. Inventors can list in a searchable catalog patents they want to license out. Potential investors can license one or more patents. For a monthly fee, US Patent Utility will search their catalog for patents available to license and evaluate those patents for technological worth and potential for litigation (this may actually be a desirable trait for those filing patent infringement suits, not as much for those on the receiving end).
By creating this catalog and offering competitive analysis, Walker hopes to unlock untapped licensing fees and therefore breathe new economic life into previously underutilized patents. It looks complicated and designed for a much different world than I and most of my clients inhabit.
I don’t necessarily agree that our patent system, flawed as it is, is inherently stacked against the little guy. Anyone with a computer and access to the Internet can search Google Patents or the US Patent Office for free. The framers of our Constitution would have never dreamed of such access. It is also cheaper than ever to file a patent application, albeit a “starter” patent application. For a mere $65 and access to the Internet, you can file a provisional patent application and call your idea “patent pending.” Now, whether that technology is *marketable* to customers is another story, and something no patent or patent attorney can provide.
People often come to me thinking that having a patent is their ticket to financial security. Shows like Shark Tank only feed into this misconception. I actually try to discourage people from pursuing a full blown patent unless the benefits would outweigh the risks and costs. A patent is only one of many investments a small business can make. I’ve seen successful businesses built on unpatented products. I’ve also seen people spend thousands of dollars in patents for products that no one wants.
I can give inventors legal advice as to whether something is patentable. I can advise what patents can (& cannot) do. I can write the patent application and shepherd it through the Patent Office. However, at the end of the day, the success of a business built on an invention comes down to the client’s business savvy and perseverance. That is not so complicated.