IP Thoughts

Steal Your Children's Future

Rand Bateman — Tue, 02 Feb 2010 01:51:00 GMT

It is ironic that it is illegal to open accounts in your children's' names and go into debt. It is identity theft and you can do jail time.

In contrast, you can steal much more from your children by simply electing politicians who will continue to run up the national debt. Currently, our national debt is just shy of $40,000.00 per person. A family of four owes $160,000.

So how are we dealing with our debt? The same way that we got into our current mess. This coming year the federal budget will be $3.83 Trillion. That works our to just shy of $12,500.00 per person, or $50,000.00 for a family of four. (The medium household income in the U.S. for 2007-2008 was $51,233).

So what will we do when the interest we pay on the federal debt exceeds the total revenues collected by the federal government (an event that could happen relatively soon if interest rates spike)? Simple, we will borrow more and pass the debt onto our children. We will have bankrupted the wealthiest nation on earth. We should be so proud.

Apple Is Having Trademark Troubles

Rand Bateman — Sun, 31 Jan 2010 05:02:00 GMT

It looks like Apple has made yet another mess in its trademark department. A few years ago Apple launched a revolutionary new telephone, only to get mired down in the fact that Cisco already had a registration for IPHONE for computer hardware and software for providing integrated telephone communication with computerized global information networks. Apparently Apple was able to work out a deal and get its own registration.

Having already been through that mess, you think Apple would have thought through the IPAD a little more carefully. The problem is that Fujitsu Transactions Solutions already has a pending trademark for IPAD and has use going back more than 8 years. Of course, Apple has filed for an extension to oppose Fujitsu's mark. Apple's likely position will be that it owns anything with an I in front of it. The odds of winning on that ground seem pretty slim. Thus, Apple will probably pay off another company. One wonders why not put a little more effort on the front end to naming your products so you avoid trademark conflicts.

When Patents are Worth Billions

Rand Bateman — Tue, 22 Dec 2009 14:13:00 GMT

The record setting patent awards continue. Recently a Federal judge ordered Abbott Laboratories to pay $176 M in interest to Centocor (a division of Johnson & Johnson) for sales of the drug Humira. That was on top of the $1.67 billion awarded for the infringement of Centocor's patent . A billion here, a billion there and pretty soon you are talking serious money.

Google Loses A Round

Rand Bateman — Tue, 22 Dec 2009 14:07:00 GMT

Google has lost a major round in its attempt to put digitized copies of books on the internet. Somehow Google thought it could overcome the copyrights of the authors whose works it was copying. A French court, however, recently disagreed, ordering Google to stop scanning French books and awarding $430,000 to copyright owners who sue Google for infringement. While the idea of having books on the internet is a great idea that will spread knowledge, Google does not get a free pass regarding infringing others copyrights.

Be Careful of What You Say - And More Careful of What You Don't

Rand Bateman — Wed, 28 Oct 2009 21:54:00 GMT

There has been a fair amount of press on the intention of the FTC to penalize bloggers for not disclosing renumeration (money, free product, etc.,) that they receive when the write posts endorsing products. When you think about it, disclosure makes sense. Do we really want to have friends tell us things that are in reality just a commercial. The $11,000 potential fine, on the other hand, may be a tad on the excessive.

While the disclosure requirements on blogs has caught the media's attention, the new FTC rules actually go much further. If you advertise, you probably will want to make sure you aren't walking into a hornet's nest.

Everyone has seen the ads for the guy who went from a 250 lb. marshmallow to a ripped Men's Fitness model in a couple of months. (Much as most of us would like - it usually does not happen that way). If you look carefully, the advertisement will almost always have a disclaimer "results not typical." One of the big changes is that the safe harbor disclaimer will no longer be allowed. Now you will have to identify what typical results are. So if the your spokesperson is a freak of nature who lost 50 times your customers' average of 2 lbs, you are going to have to disclose that typical results are two pounds.

The disclosure requirement is also going to extend to peer to peer advertising. If you are are giving award points to a million teenagers who proselyte their friends for you, be aware that those "spontaneous" endorsements have to be disclosed as advertising. Yes, it kind of ruins the effect of peer to peer advertising when people realize that you are paying people to be their friends. However, failure to do so may bring down the ire of the FTC. "Hey Johny, that new video game I bought rocks - This has been a paid commercial for Jimbo's new video game."

Another interesting change in the rules is that the endorser may now also be liable for violations of the rules. Thus, if you make your living endorsing people's products, what you do not say may be just as important as what you do.

What to do - read the rules and make sure that your latest ad campaign won't get you a visit from the FTC.

Here is the FTC Announcement

Here is the Revised Endorsement Guide

How to lose sales and disinterest people

Rand Bateman — Wed, 14 Oct 2009 22:25:00 GMT

It is a tough economy and it is understandable that people might stretch a little. However, if you are being completely dishonest, it will not help your prospects in the long term. In the last week I have several calls from people trying to get my business. Some were selling things and others were trying to get my firm to sponsor events. In each case the caller made a misrepresentation in an attempt to speak with me. A couple claimed that they were returning my call or that I had expressed interest in their product. No one at my firm was familiar with the company and I certainly had no interest in their product. The moment I realized that the person calling had lied to get through to me, the chance that I would ever do business with the company - for any product or service - went to zero.

Likewise, someone left me a voice mail indicating that we had called about sponsoring their event. I was unaware of the event and probably would not have been interested even if I had been. However, the mere fact that the caller lied to try and get a return telephone call told me not to do business with them again.

I always wonder why someone thinks I would do business with them if our first encounter is based on a lie. It may work in the short term by getting some confused individual to listen. However, in the long term it creates a lot of people who are no longer potential customers.

Take Down Letters and Misusing Intellectual Property

Rand Bateman — Thu, 08 Oct 2009 22:30:00 GMT

Most people dislike being criticized. Sure, we should stop people from engaging in slander or libel, but how about when they are criticizing poor work? Do you have the right to avoid criticism.

Apparently RALPH LAUREN believes that it does. Recently RALPH LAUREN ran an add for its clothing. Apparently, the model it hired did not look quite anorexic enough, so they used a little PHOTOSHOP magic to show a woman you can wrap your hand around.

One could go on about the fashion industry and whether it is responsible for the problems of anorexia and bulemia in today's young women. After all, your typical teenager cannot use PHOTOSHOP to get down to 75 or 80 lbs. Boing Boing, however, simply made fun of the poor use of PHOTOSHOP.

Apparently RALPH LAUREN did not appreciate the criticism. They had their New York attorneys send a take down letter claiming copyright infringement. Fortunately Boing Boing did not cave.

Using the copyright laws to try and shut down criticism has two major draw backs. First, the copyright laws have a fair use exception that allows copying - and use for criticism is about as clear of a fair use as it gets. Second, it risks the "Streisand effect" - named for the singing Diva who tried to stop publication of a photograph that included her beachfront home. Not only didn't she succeed, the photo got far more attention than it would have.

When someone has done something you do not like on line, you need to ask yourself a few questions before you send cease and desist letters or take down letters. First - is what they are doing really violating your rights? If not, threatening legal action based on intellectual property only makes you look stupid. Second - even if they are violating your rights, is the cure worse than the disease? In other words, will threatening them merely result in more publicity of the improper post, etc., A prime example of the Streisand effect is DirectBuy's attempt to shut down dissent which only backfired, as I discussed a couple of years ago. Their cease and desist letter made DirectBuy and their attorneys look stupid.

Protecting your rights is important. Thinking before you act is more important.

Chasing the Money

Rand Bateman — Tue, 29 Sep 2009 23:26:00 GMT

Last night I was reading the paper and came across an article that indicated a majority of people in the U.S. are in favor of taxing millionaires at 50%. Wow, have we really become such a jealous country that we want to take half of what people earn. While many have the attitude - so what they are rich, it makes you wonder who is going want to take the risk to start new ventures. If you fail - sucks to be you. If you succeed, we will take half. (I am unsure whether than included state taxes, so maybe the total is more like 55-60%).

The great irony is that on the same page there was also an article about how New York is not receiving the money it expected from its new tax on millionaires. It seems that at least some of the big earners have decided to move out of state and resettle where taxes are lower. Many high income people already own second homes in other states so the switch will not be hard. Look for the number of millionaires in Florida, Wyoming and Nevada to increase.

While gouging the other guy always sounds better, it comes at a cost. One of the people they interviewed who had moved out of New York relocated her company to Florida. Not only does New York not get her tax money anymore, it also lost a number of jobs that the people in Florida were more than happy to fill.

The same thing can happen on a global scale. There is a reason that countries/states like the Bahamas, Monaco and others have a large number of very wealthy from other countries. If you raise taxes to high, the golden goose will fly away.

Cyber Symposium

Rand Bateman — Fri, 25 Sep 2009 20:47:00 GMT

Today I have been attending the Utah Cyber Symposium. Many thanks to Perry Clegg, David Langeland, and Ben Holt , the officers of the Cyberlaw Section of the Utah State Bar, for putting together a top notch program.

Unlike the typical continuing legal education, the Cyber Symposium was designed for both lawyers and business people alike.

The morning speaker was Paul Alan Levy. Mr. Levy is well known nationally as a public interest attorney for his work with Public Citizen. He has argued four cases before the U.S. Supreme Court and submitted briefs in 7 others. He has the odd distinction of having each case decided on 9-0 decisions. Mr. Levy addressed issues involving Immunity of those who allow the posting of content under 47 U.S.C. 230 - i.e. can you be sued for defamatory (or other improper) statements by others on your website. His outline can be a great guide on how to keep your company out of trouble.

Chris Johnson of SCI received the Cyber Pioneer Award

Other speakers included:
Brock Blake of Funding Universe, speaking about negotiating high tech funding transactions;
Pete Ashdown of Xmission, discussed the technical contrainsts of legal regulation;
Lee Livingston of Fibernet Corp. discussed PCI Compliance;
Douglas R. Bush of Arent Fox in Washington, D.C. discussed the expansion of top level domain names.;
Steve Spencer of One to One Interactive (Twelve Horses) discussed social media ettiquette;
David Bradford of Fusion-io discussed networking;
Paulo Patente of Di Blasi Parente Vaz e Dias & Associados discussed ten tips for doing business in Brazil.

A number of other speakers also presented. The handouts for the speakers are available at the Cyber Law Website

Fraud In Trademarks

Rand Bateman — Fri, 18 Sep 2009 22:35:00 GMT

The Court of Appeals for the Federal Circuit has recently given a little bit of relief to trademark owners. For a number of years the Trademark Trial and Appeal Board at the U.S. Patent and Trademark Office was canceling trademark registrations for "fraud" if any of the information was inaccurate. The most dangerous was the date of first use of the mark. This led many to claim a later date than for which they had actual use just to protect against potentially invalidating their registration. In In re Bose Corporation the Federal Circuit found that the TTAB had been misapplying the standard. Not only do you have to show that the information is inaccurate, you have to show that there was an intent to deceive. The Federal Circuit's analysis makes more sense and will give a little breathing room in case of inadvertent errors.

How Far In Debt Are You Personally?

Rand Bateman — Fri, 28 Aug 2009 23:34:00 GMT

I hate it when you cannot tell how much something actually costs or how far in debt you are. I was trying to figure out my debt load today, but kept getting differing information.

Fox News claim I owe almost $38,000 for my share of the National Debt. USWA claims that it is more than $38,000. It would be nice to know the real numbers. (The two are off by almost $200 Billion on the national debt). Oh well, it is not like I will be paying it off my share - or the ~$38,000 my wife owes - or the ~$190,000 my kids owe - any time soon. No, I'll just leave the mess for my yet unborn grandchildren to clean up.

Exploding Coke Cans

Rand Bateman — Thu, 27 Aug 2009 22:47:00 GMT

Your mother probably told you that soda wasn't good for you. Well, I finally have proof. The attached pictures are of my associates office. He had a Diet Coke Lime sitting on his credenza. As he was sitting in his chair facing his desk, the can exploded, went over his head and landed in his lap. Lucky for him, it missed his neck.

I have talked to others who have had similar experiences with Coke cans. Maybe I should change my practice from IP to products liability. COKE's new motto is "OPEN HAPPINESS" - Thanks but I would rather wait until I open the can.

Another Perspective

Rand Bateman — Thu, 27 Aug 2009 22:20:00 GMT

For the past week we have had some friends from France staying with us. They are retired and have a very different political view than we do. When we discussed Obama's health care plan they did not see our concerns with rationing. My wife explained that we were concerned with a system that gives lower priority to some than others because of their age, etc. After thinking about it for a minute they acknowledged that they had just come to accept it because that is how it works in France.

Health Care will always be rationed. The question is how. The least acceptable way to me is a bureaucrat in Washington.

Are we really supposed to be spying on each other

Rand Bateman — Fri, 14 Aug 2009 07:08:00 GMT

I am usually not one for conspiracy theories and the like. However, the White House's request that we forward "fishy" videos and emails about its Health Care plan has me a little concerned. I am just old enough to remember the old Soviet Union where neighbors were rewarded for spying on neighbors and children on their parents. (So much for disciplining your children). I also know people who lived in Europe during WWII were snitching on your neighbors was rewarded.

The following clip puts a funny light on it: fishy emails. However, I do have some concern from a civil liberties point of view. Should the government ever be encouraging people to tattle on their neighbors who disagree on policy issues? (if your neighbor is building a large bomb - its ok). It seems to me like it has a chilling effect on free speech. If you disagree, you can always forward this to President Obama. I am sure his people will find it fishy.

Just another thought - Do you really want the same people who oversee the post office overseeing your health care. FedEx made $97 Million while the Post Office lost $7 Billion.

Opting Out Of Martindale-Hubble

Rand Bateman — Mon, 27 Jul 2009 16:41:00 GMT

When I graduated from law school 16 years ago one necessity was being listed in Martindale-Hubble. For those who are not familiar with it, Martindale-Hubble has been the ultimate index of lawyers for many years. Anyone who was anyone was listed in Martindale-Hubble and it was the first place lawyers turned to when they needed co-counsel in a case. At the time, there were few other options other than going to the library to find telephone books from other states. Martindale-Hubble had a virtual monopoly on important information. You always wondered about a firm that was not listed.

One big problem with MH is they have acted like a monopoly. Each year you could count on a price increase of 6 to 8 percent, even as they started charging separately for the books that used to be their product. Even though MH added martindale.com and lawyers.com, they seemed over-priced for the information they were providing. At the same time, the availability of the information in MH (and a whole lot more) increased thanks to Google, Yahoo and law firm websites.

Our firm of five lawyers and four patent agents was paying more than $3500 a year to be listed. I recently compared our analytics on traffic from MH vs. our other on-line advertising. We were get 19 times as much traffic per dollar from our Google cpc and 5 times from other on-line advertising.

So I finally decided to pull the plug on MH and redirect those advertising dollars elsewhere.

Ironically, many of the big firms are taking the same approach. Numerous of the top 100 law firms have dropped their MH profiles. Lesson: when you have increased competition, you cannot keep acting like you are the only game in town.

Pres. Obama Acts Stupidly When He Speaks Without Knowing All of the Facts

Rand Bateman — Mon, 27 Jul 2009 06:04:00 GMT

In case you have not been reading the papers for the past week, a friend of President Obama, Harvard Professor Henry Louis Gates, Jr., got arrested last week for disorderly conduct. It seems that Prof. Gates lost his key on a trip to China and had to force his way into his home. A neighbor saw someone "breaking in" and called the police. Prof. Gates took great offense when the police officer asked him for ID and started yelling obscenities at the officer when he asked him to step outside. The officer had finally had enough and arrested him. The charges were later dropped.

Pres. Obama was asked about the situation at a news conference. He replied that while he did not have all of the facts, the police "acted stupidly" in arresting Prof. Gates. Ironically, the police officer did what he should have done. First, ask the person who answers the door for ID to ensure that he or she is the proper occupant of the house. Second, he asked the occupants step out of the house so the house can be searched to make sure that someone has not broken into the house.

Several years ago I came home right as the police were responding to an alarm at my house. The first thing the officers did was ask me to confirm my identify. They then searched my house before I went in to insure that no one was inside.   I am grateful they did. Had I thrown a temper tantrum and interfered with their ability to clear the house, I should have been arrested for putting the officers' in danger and interfering with their work.

Walking into a house is one of the most dangerous things a police officer does. An officer is far more likely to be killed in a house than during a bank robbery or other scenario you see on TV.   When an officer is attempting to clear a house, he or she needs to be able to focus his or her senses on the house and insuring that no one else is there. Having someone yell profanities at the officer has no productive purpose.

While Prof. Gates' friends at various civil rights organizations decried that this could happen to a black man in America today, the officer was not going to Prof. Gates' house to persecute a black man. He was answering a report of an attempted break-in. There was no justification for a Harvard professor to throw a hissy fit and scream profanities at a police officer who is trying to do his job.   Likewise, there was also no justification for Pres. Obama to blame the police officer without having all of the facts. In fact, the two people who were "acting stupidly" were Pres. Obama and his friend, Prof. Gates.

One of the reasons Prof. Gates behavior was so harmful is that it lessened the impact of real discrimination - just like the little boy who cried wolf. Unfortunately, there are a few police officers who are racist and have no qualms about using the weight of their position to harass minorities. I have had friends who were pulled over for dwb (driving while black) or otherwise singled out because they are a minority. Racial profiling is a real problem - but it cheapens those who have really suffered it by claiming that it applies to a Harvard Professor who had too much of a chip on his shoulder to simply cooperate with an officer investigating the report of a crime.

Having Gates step outside was for the safety of both the officer and Gates himself. It was Gates temper tantrum that was stupid. Likewise, it was stupid of Obama to blame the officers before he even had all of the facts. So much for Obama as the first "post-racial" President.

Protecting Your Business

Rand Bateman — Wed, 22 Jul 2009 15:21:00 GMT

Most businesses appreciated that they have to protect themselves from their current and potential competitors. During good times, potential competitors may include your own employees. When employees see a business making a lot of money, there is always a temptation to start a competing business. Unfortunately many employees walk out the door with trade secrets such as proprietary processes, customer lists, and other confidential business information that gives them a competitive advantage. Such misconduct can destroy a business even in the best of times. In down times, however, the threat may be even greater.

While few employees who have a job will want to leave a stable income and go into competition in a bad economy, employees who have been laid off or fired may believe that they have nothing to lose by using the confidential information to start a competing venture. Moreover, if their situation is desperate, they may be willing to undercut their former employer’s prices more than normal to steal away customers. The bad economy only adds to the problem as even loyal customers may consider switching if they are tight financially and are offered a substantial decrease in cost.

Now is also a good time to consider non-competition agreements and other employment agreements. In good times some employees will not agree to non-competition agreements because they have other options. In down times, a non-competition agreement in exchange for some consideration such as a guarantee of employment for some length of time, or an agreement to raise or not decrease salary may be welcomed.

Thus, it is as important as ever to ensure that a company protects its confidential information. Employees should understand what information is protected and may not be used to compete with the company. The company should also control access to confidential information such as customer lists, customer purchasing cycles, and anything else that would be beneficial to a potential competitor. Avoiding a scenario where your own confidential information is used against you is a great way to avoid going out of business.

Finally, it is wise to promptly investigate any activities which may involve this appropriation of trade secrets or other confidential information. A company is in a much better position if it immediately takes action than if it waits until it has lost numerous customers to a former employee. Once the former employee has taken a large number of customers it may be too late.

These are Strange Political Times

Rand Bateman — Sun, 05 Jul 2009 14:06:04 GMT

I have avoided blogging for the last month because I have been trying to get out of the political discussions that have pervaded my blog for the last few months. It has seemed so bizarre that the virtually no one in the media (except right wing blogs and radio) is challenging Pres. Obama's attempt to borrow our way to prosperity. (In actuality, it is not borrowing since not even China wants our debt. Rather it is printing money to ease today's recession - setting up a stag-flation situation like occurred in the late 1970s and early 1980s.) Spending more than you make worked so well for American consumers that the Government thinks it is the way to prosperity.

Now, we have bizarre politics on the international scene. Pres. Obama and most of the rest of the world have said relatively little while Iran kills or arrests young people there who are protesting what appears to be a fraudulent election. Of all countries - it is France - who has spoken out with the strongest condemnation of Iran's oppression of it's citizens.

While killing and arresting those who disagree with a fraudulent election is ok, what is not ok is for a country to get rid of a dictator in the making. Last week the military in Honduras escorted Pres. Jose Manuel Zelaya out of the country. The US and others in the International community has condemned the "military coup d'etat".   Interestingly, however, the removal of Pres. Zelaya was not planned by the military and the military did not interfere with the replacement of Pres. Zelaya with his constitutional successor.   It seems that the military was acting on orders from the Honduran Supreme Court who ordered Pres. Zelaya arrested after he repeatedly ignored rulings against him by the Court. (It seems being escorted out of the country is worse than being arrested for abuse of power charges). Not only did the Supreme Court vote for his ouster, so did the Honduran Congress (including his own party) and the Honduran Attorney General. Pres. Zelaya's successor - Pres. Roberto Micheletti - is from Zelaya's own party.

The international community is now insisting that Pres. Zelaya be returned to power in Honduras. Apparently the Honduran Supreme Court, Congress and Attorney General should have no say in the matter. Pres. Hugo Chavez of Venezuela is promising to overthrow the new regime. Something is wrong when the U.S. is siding with the Castro, Chavez and Ortega.

Lets make sure to put Zelaya back in. That way we can have a solid block of leftist dictators in Latin America. It is just was we need right now.   Then perhaps we should start working on repeal of the 22nd Amendment. Apparently, it is still a great time to be a dictator.

US Socialism

Rand Bateman — Mon, 01 Jun 2009 19:19:00 GMT

I have sat back in awe at how quickly the U.S. can gone from a capitalist country into one that, for all intents and purposes, is on a fast track to socialism. Do anyone ever think that the President of the United States would be not only dictating the development of new cars at Chrysler and GM. While the U.S. Government has taken over two of the three largest automakers, the French government is busy selling off companies that were previously nationalized. Soon, the U.S. government will own a larger share of GM than France owns of Renault. (Of course, one has to ask why all of this was necessary since GM is ending up in bankruptcy anyway. The only difference is that instead of the bond holders and secured creditors getting most of the company, control will now be with Pres. Obama and the Unions).

I have been surprised by the lack of outrage in the American public. The government bails out some companies while allowing others to fail. I guess it all depends on who your friends are - Just ask Hank Paulson.

You know it has hit rock bottom when Pravda Online, a take off of the former Official Paper of the Soviet Central Committee is mocking the U.S. In American Capitalism Gone With A Whimper the former comrades mock the U.S. for its run toward the failed policies of socialism.

In case anyone forgot, we fought a war two hundred and thirty three years to get rid of excessive government interference in our lives. It is apparent that the Founding Fathers had no greater fear than the power of government and went to great lengths to limit the ability of the government to control the lives of U.S. citizens. Now it is hard to find one of the bill of rights that the government does not violate on a routine basis.

So the real question, do American want a land of opportunity or a land where the government controls everything. If we do not speak up for one we will surely get the other.

Utah Genius - Thank You

Rand Bateman — Wed, 13 May 2009 00:00:00 GMT

Today we held the Utah Genius awards honoring a large number of Utah geniuses. There are many definitions of genius. The one I like the best is "an individual who successfully applies a previously unknown technique in the production of a work of art, science, or calculation, or who masters and personalizes a known technique." The people and companies we honored today have shown their exceptional capacity by obtaining a large number of patents in a single year (5 were required to make the top 20) or creation of new products as shown by their trademark registrations. A full list of winners will be up soon on utahgenius.com.

I just want to thank the people at my firm. It is a challenge doing an award ceremony where the honorees do not put in for the award. With this being our first year, we had to convince a number of inventors and companies that we were not trying to sell them anything. It took many calls to track down the fifty-seven honorees for this year's event and get photographs and other information needed.

It was also a challenge getting everything ready for the nearly 300 attendees at the luncheon, but we were rewarded by the caliber of people who showed up. The best part of the program was when Dinesh Patel received a standing ovation when awarded the Lifetime Achievement Award. In his typical humble style, Dr. Patel doubted whether he qualified for the award. If he doesn't, we are in trouble, because I cannot think of anyone more qualified to be called a Utah Genius.

It has been a fun ride and we hope next year's program will be even better.