IP Thoughts

Have We All Gone Insane?

Rand Bateman — Wed, 03 Aug 2011 19:21:13 GMT

As I have watched the debate about the debt ceiling, I am wondering if nearly all of our politicians have gone insane. For that matter, I am starting to worry about the American people. Do we really not care that we are destroying our economy for our children?

If you were an investor, would you lend to the following individual?

He owns a company that nets $1.5 Million a year, but he has $1.4 Million in debt.   The business currently nets $220,000, but his is spending $370,000 a year. He as agreed to cut his spending to $350,000 per year ($9,000 of the cut to be identified now and the other $11,000 some time in the next six months).

It does not sound like a great investment does it?

Oh, one other thing. He was also given $250,000 in money for a aging relatives. He agreed to hold the money and pay additional living expenses and medical care for his relatives. He had originally put it in a saving account, but he decided to lend all of the money to his company in exchange for IOUs.

That is pretty much what is happening with our Federal Government. Spending has been out of control for the past 10 years and there is no sign of it getting better. Even with the budget deal worked out in Congress, by 2021 the debt will be $21,000,000,000,000.   That is nearly $70,000 for every man, woman and child in the United States. Who is going to pay it back? Not the people who are collecting social security.   Not the 47% of Americans who pay no Federal income tax.

As de Tocqueville noted: "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess out of the public treasury."

Patent Attorney/Electrical Engineer/Computer Science

Rand Bateman — Tue, 17 May 2011 22:10:00 GMT

Bateman IP Law Group has a position open for an electrical engineer or computer science patent attorney. If you know anyone who might want to come back to Utah and join an IP firm ranked Tier 1 by U.S. News, please let me know. www.batemanip.com

Comment Spam

Rand Bateman — Wed, 05 Jan 2011 13:41:00 GMT

One of the things that has encouraged me to get back to my blog has been comment spam. I receive alot of comments that tell me how wonderful my posts are or what a good writer I am. However, in most of these comments there is nothing that suggests that the person submitting the comment has even been reading the blog. Unfortunately, there are many who try to up their own website's visibility by posting flattering comments like "Wow! what a great blog" on a hundred different blogs hoping to get link backs. (It is particularly apparent when the same person has made the exact same statement multiple times.)

Getting complements is always nice. However, comment spam just clutters the conversation. Thus, I do not accept the "great post" type of comments unless their are 1) from someone who I know follows the blog (in which case I truly appreciate the compliment) or 2) there is something in addition that furthers the discussion. "Your blog is great" will get deleted, while "That was a great post. I have been facing a similar situation . . . " will. Likewise, comments that take a contrary position will also be accepted as long as they are respectful. (I am one of those people who believes that you can disagree without being disagreeable - a view which is apparently losing ground on the net.) Attacking my position or that of anyone commenting contributes to the marketplace of ideas. Attacking the person making the comment does not.

So a word to SEO types. I will gladly accept your comment - just make sure it adds to the discourse.

Getting back in the groove

Rand Bateman — Wed, 05 Jan 2011 13:28:00 GMT

There is a old saying that "three weeks makes a habit." Unfortunately last year I decided to take a month off of blogging because I was a little overwhelmed with work and family responsibilities. Well, not blogging became a habit and I got pretty good at it. However, with the new year, it is time to get back in the groove and discuss the law, politics and anything else that puts a burr under my saddle.

Is Dell Trying to Self-Destruct?

Rand Bateman — Tue, 27 Apr 2010 06:27:00 GMT

Every once in a while you have to take a look at a company and wonder if it is trying to self-destruct. I think Dell is a prime candidate for the Darwin Awards.

For the last 4 years my firm has been buying Dell computers. We have bought 12-15. It was easy to get on line, build what you wanted and get it delivered in a fairly short order. Well, that was the old Dell. The new Dell is trying to make sure customers do not come back.

About 2 months ago I decided it was time to order a new laptop. The ADAMO looked pretty good. It is very thin and had good reviews. So I put in an order. Well, at least I tried to. It turns out that Dell has assigned a representative to handle our account. What does that mean? It meant it took 4 telephone calls, 2 days and over 30 minutes on hold to talk to our representative so we could place the order. Dell would not allow us to simply order on the phone like individual customer could. O.K. so we finally got it ordered. When it arrived, it looked pretty good - well except that the cd/dvd drive (which is separate) was "pearl" and the compute was black. O.K. so we had to send the drive back to get the proper color.

So I finally had my new machine. The batter life was much shorter than advertised. I got about 2.5 hours, which is not great when it is a built in battery.

I decided I could live with the short batter life. Would by an external that would plug in. However, before I could order the external battery, the ADAMO crashed. We are talking EPIC FAIL. It would not even reboot. Yes the solid state drive - looks like it was not that solid. It appears that the computer also had major heat problems.

Well what do you do with a new dead computer? You call to get it replaced. Due to demand they told me it would take just over a week to get the new one shipped. Fortunately, I had been too busy to clean off my old lap top - and it has been in use ever since. Unfortunately, shortly before the first ship date I was notified that the ship date had been delayed. I got the same message just before the second scheduled ship date. Now, three weeks later, I do not even have a ship date on a replacement. I do however, get a call every couple days from a nice young lady in India ensuring me that they are doing their best to meet my urgent need.

I recently looked at a service that gave consumer rankings for websites. Dell.com got a 1.6/10. Can a company with such poor customer service be around long? If I owned any Dell stock, I think now would be a good time to sell.

So, if you are looking for a new laptop, I would definitely recommend skipping the ADAMO, unless you want a nice looking paperweight. As for me, I think I will try the MACBOOK PRO.

Unintended Consequences

Rand Bateman — Sat, 24 Apr 2010 00:15:00 GMT

One of the problems when Congress acts is that they often do not look at the unintended consequences. In the rush to do something to regulate the banks who help create our current financial mess, they are proposing regulations that will adversely affect financial institutions that had nothing to do with the meltdown. A prime example is USAA. USAA is an organization that is open to members of the military and their children. It provides banking, insurance and a host of other services. It is consistently rated among the best run financial companies. Unfortunately, the current financial reform bill will interfere with that. The following is an email I received from USAA earlier this week.

Dear Mr. Bateman:

Rarely in our 87-year history have we turned to USAA members to weigh in with elected representatives on an issue of great importance. But, we are now.

The U.S. Senate currently is considering legislation (S.3217) that would impose new rules on the nation's financial services industry, including USAA.

As the leading provider of financial services to America's military community, USAA supports financial services reform.

However, the current Senate bill would disproportionally impact USAA because we are a unique and fully integrated association. USAA is not like the banks and other companies that helped bring down our economy, and we never took a penny of TARP funds. We do not engage in the harmful practices this legislation seeks to resolve.

If unchanged, the bill would:

Prevent USAA from managing the association's portfolio as we have for the past 87 years.
Jeopardize our ability to continue offering many of our competitive products.
Limit our ability to return money to our members. Last year, USAA returned $1.2 billion to our members in the form of distributions, dividends, and bank rebates and rewards.*

So, we are asking all USAA members and employees to urge their U.S. senators to amend a portion of the bill, known as the "Volcker Rule," to eliminate its effect on a company like USAA. Please know that this legislation does not impact individual member's investments.

Regardless of the outcome of the legislation, USAA will remain a unique and enduring association that's all about you — the military and their families.

Please take action on this matter by immediately contacting your U.S. senator. You may click here to access a special website that will enable you to quickly send an e-mail message to your senator.

Thank you for your help and support,

Josue (Joe) Robles Jr.
Major General, USA (Ret.)
President and CEO

One of the problems with passing laws in response to problems is that they often penalize those who are trying to play by the rules and are ignored by those who are not. One thing that the government ought to try is going after firms under current rules or carefully drafting rules to apply to the misbehavior rather than penalizing the companies that play it straight.

Utah Genius 2 Weeks Away

Rand Bateman — Thu, 22 Apr 2010 03:05:00 GMT

The Second Annual Utah Genius awards are now just two weeks away. The awards are designed to recognize those who are making prolific contributions to our creative economy. Sheri Dew of Deseret Book is the lifetime achievement honoree. Awards are also given for Utah's Top 20 Inventors for 2009, Utah Top 20 Companies by Patents Issued to Utah Inventors, the top cities by number of patents and Utah's Top 20 Trademark Registrants.

Governor Herbert is providing opening remarks and Doug Fabrizio is the Keynote Speaker

For more info check out Utah Genius

Robbing Peter to Pay Paul

Rand Bateman — Fri, 09 Apr 2010 14:14:00 GMT

"A government that robs Peter to pay Paul can always depend on the support of Paul." This quote by George Bernard Shaw takes on new meaning when you look at the recent statistics about American taxpayers. Forty-seven percent (47%) of households pay no Federal Income tax and forty percent (40%) of households actually get money back, offsetting whatever they pay in Social Security taxes. (It is hard to understand how Pres. Obama will keep his promise to lower taxes for the bottom fifty percent (50%) other than simply sending everyone making less than $50,000 a year a check courtesy of the evil rich people.

Those evil rich people, the top ten percent (10%) of income earners, refuse to pay their fair share. After all, they only pay seventy-three percent (73%) of all income taxes. So much for the oft repeated lie that the middle class is bearing an unfair tax burden.

It may sound good at first to be able to have the upper 10% pay all of the taxes. I mean, why steal when you can get the government to take it for you. The problem arises in that those who are truly rich can vote with their feet. New York found this out when it passed a "millionaires tax" to raise extra revenue. For some reason the revenue did not pan out like New York had hoped. Rather than pay the additional taxes, a large number of millionaires decided to move to sunny Florida and other states with lower taxes. Not only did New York lose out on the taxes, it also lost jobs as these millionaires relocated their companies to more business friendly environments.

For decades the U.S. has benefited from wealthy Europeans relocating to the U.S. to avoid high rates of taxation in the countries of origin. The problem is that while the U.S. is now advocating even greater taxes on the rich, many European countries and cutting taxes. Are we setting up a scenario to reverse the flow of capital. To paraphrase Margaret Thatcher - The problem with Socialism is that sooner or later you run out of other people's money.

Can you imagine what it would happen if for one year the top ten percent (10%) decided to defer enough income to reduce their taxes by fifty percent. It is not that hard for someone making $350,000 to defer $110,000 in income and drop out of the top tax bracket. In fact one wealthy American during the great depression arranged his finances to pay no taxes for several years at the height of the Depression to protest Pres. Roosevelt's confiscatory taxes. If it happened on a widespread scale, Pres. Obama could go down in history as the first President to have a $1 Trillion deficit and the first to have a $2 Trillion deficit.

Utah Genius May 5th at the Little America

Rand Bateman — Thu, 08 Apr 2010 16:14:00 GMT

It is that time of year again - time to honor the most prolific innovators in Utah. This year Utah Genius will be honoring Utah's Top 20 Inventors, The Top 20 Companies/Organizations based on Utah inventions, the Cities whose residents get
the most patents and the Top 20 Trademark Registrants.

Governor Herbert will be providing our opening remarks. Doug Fabrizio of KUER will be the Keynote Speaker and Sheri Dew, CEO of Deseret Book will be the Lifetime Achievement Honoree. For more information, visit Utah Genius

Indispensable By Monday

Rand Bateman — Tue, 16 Mar 2010 15:08:00 GMT

Last week we had a training session in firm from an outside consultant. I often do not use outside consultants because few of them understand the legal profession. However, after hearing Larry Mylar speak at the UVEF

luncheon I thought I would give him a try. While Larry's focus is really on much larger corporations and law firms are not an exact match for his model, Larry did a great job of customizing the discussion to the needs of our organization and helped us focus on a couple of points were we could improve our firm. I would also recommend his book, Indispensable by Monday for anyone looking to get their employees vested in profitability of your company.

And The Lock Box Is - - - Mostly Empty

Rand Bateman — Tue, 16 Mar 2010 04:37:00 GMT

Does anyone remember when Al Gore talked about the social security lock box? The lock box got opened recently. Well, it isn't really a lock box, but a set of filing cabinets. And while it was projected that social security would be bringing in more than it paid out for several years to come, the economy has fast forwarded us to the time when more is going out in social security payments than is coming in.

So what was inside? Loads of cash to help social security? Nope! The lock box held nothing but binders full of IOUs. $2.5 Trillion worth. For decades our Presidents and Congress have been borrowing the surplus money in social security to minimize the amount which the government has to borrow from other countries. Now it is time to start paying it all back. So at a time at which our Federal Government is running record setting deficits, it now needs to borrow even more from abroad to pay back social security. Even with the government paying back the IOUs - which may be iffy if it cannot contain spending - social security is now projected to run out of money in 2037. (27 years may sound like a lot, but that is before anyone 40 or under will be able to require with full social security benefits).

This is a financial train wreck that is happening in slow motion. One only need to look around at our own neighborhoods to see the consequences of reckless spending. While we are in a deep mess, the first thing to do when you find yourself in a hole is to quit digging. If we start making hard decisions today, we have a chance of escaping a complete meltdown that will make Fall of 2008 look like an economic boom. If we keep trying to fix our economy by borrowing from our children and adding mounds of government regulations on businesses - we will be getting a foreclosure notice signed by Japan and China.

Equalization is Not Equal

Rand Bateman — Wed, 24 Feb 2010 04:40:00 GMT

I have to hand it to the Jordan School District. They have done a great job of playing the victim and spinning the facts. Their PR people should be proud.

For nearly a decade the Jordan School District poured money into building new state of the art schools on the west side while all but ignoring the aging schools on the east side of the district. After years of frustration, the residents on the east side finally decided to leave and start a school district that would take their children's safety and comfort a little more seriously.

Right out the gate residents on the west side complained that they did not get to vote. Of course, there is no doubt how they would vote. Why let the east side leave then all that tax money from the east side was busy building new, state of the art schools on the west side? Who cares if kids on the east side are going to schools built in the 1960s and 1970s that do not meet earthquake codes, if our kids are getting the latest and greatest?

So when the east side voted to leave, did they cash in. No! To the contrary, the new Canyons School District has to pay nearly 59 percent of the debt service on all of those new schools on the west side. ($20 Million per year). This while it is estimated that Canyons School District needs to spend nearly $650 Million on its aging schools.

Having received a $20 Million annual subsidy, the great PR department for the Jordan School District came up with yet another way to extract more money from Canyons. When Canyons left, the tax revenue per pupil went up in the Canyons and down in Jordan School District. There is now nearly a $1,000 per student variance. Ah! Jordan can claim victim status once again by demanding that Canyons District give some of that disparity to Jordan. Of course, when arguing its case to the media, the Jordan School District completely omits the fact that it has a stable full of brand new schools while Canyons District needs $650 million for capital improvements.

If Canyons were to keep that $1000 per student difference, it would take 19 years to make all of the renovations needed for its aging schools. However, legislators from the cities in the Jordan School District are now seeking an addition $15 million annual tribute to "equalize" tax revenues. Why don't they propose anything to "equalize" the great disparity in physical assets? Because, despite the claim to being a conservative state, many of our legislators love a bailout. Any time you can get your hands on other people's money, count them in.

Here is a really radical idea. The residents of the Jordan School District actually raise their taxes to provide adequate funding for their school district. Otherwise, you are doing the same thing you are complaining about OBAMA. Redistribution is redistribution, regardless of who votes for it.

Trademark Overreaching by IOC

Rand Bateman — Fri, 19 Feb 2010 16:24:00 GMT

Every so often a large entity gets the crazy notation that having a trademark gives them ownership of a word, rather than the exclusive use of the word for their goods or services. The NFL is notorious for trying to own the word SUPERBOWL, even though there are numerous contexts in which use of the word by others would be fair use.

Not be be outdone, the International Olympic Committee apparently believes that it owns everything involved in the Olympics, right down to the names of the athletes. While some companies may legally challenge the IOC's silly position, others have responded with a flair that demonstrates the baselessness of the IOC's position while simultaneously having a little fun. Check out the retort by UVEX, when an athlete who uses their products, Lindsey Vonn, wone the gold medal in the downhill.

UVEX should post the letter from the IOC, just to give everyone a good laugh.

North Face's Case is the South Butt

Rand Bateman — Tue, 16 Feb 2010 16:29:00 GMT

One of the things that frustrates many people with our courts is the inability to resolve matters quickly. A plaintiff with a lot of money can drive a competitor under regardless of the merits of its claims. In part, it has to do with judges not just stepping up and saying that there is no way a jury could find for the Plaintiff. Even if it would not totally resolve the case, such action by a judge could really streamline the litigation.

One case that seems to beg such action by the court is The North Face Apparel Company v. Williams Pharmacy et al. Williams Pharmacy sells product of The South Butt, LLC another of the defendants.

While North Face has trade dress claims based on its "iconic" coat design, the major issue is whether the mark THE NORTH FACE is infringed by the mark THE SOUTH BUTT. Apparently, North Face believes that consumers cannot determine the difference between North and South or between a face and a butt.

Clearly, the THE SOUTH BUTT mark is a parody on THE NORTH FACE. Not only does South Butt parody the name, it also makes fun of THE NORTH FACE slogan "NEVER STOP EXPLORING" with the retort NEVER STOP RELAXING. On top of SOUTH BUTT's website, it also adds the question "Why climb mountains?"

It is clear that THE NORTH FACE does not like being the "BUTT" of the joke. But does anyone actually believe that consumers are likely to confuse the two marks as originating from a common source. One is clearly mocking the other. (Apparently the Court believes that a jury in Missouri could find a likelihood of confusion.)

"Winkelmann and The South Butt also argue that the marks are so dissimilar that The North Face cannot possibly prevail. I do not find it to be implausible that the marks cannot cause a likelihood of confusion or dilution."

That does not speak well for the jury pool in the Show Me State.

What is even more frightening is that, not only did the Court deny the motion, the Court suggested that the motion bordered on the frivolous. The Court noted:

"I remind counsel of their obligations under Rule 11 and that, with each filing, they certify to the Court that the motion is not being presented to harass, cause unnecessary delay or needlessly increase the cost of litigation and that the legal contentions are warranted by existing case law or nonfrivolous arguments for extending, modifying, or reversing existing law or for establishing new law. Although this filing may not reach the level of frivolity, it approaches the line."

WOW! So much for parody and the First Amendment.

U.S. IP Is Worth More Than The GDP Of Any Other Country

Rand Bateman — Fri, 12 Feb 2010 16:22:00 GMT

No one doubts that the U.S. is no longer a manufacturing giant. We have lost most of those jobs. So where does our wealth come from. According a presentation by Ocean Tomo (the largest marketer of intellectual property) at the Utah State Bar IP Summit, the value of U.S. intellectual property is worth between $5-5.5 Trillion dollars. That is greater than the gross domestic product of any other country. This makes up roughly 75 percent of the valuation of the S & P 500.

One of the eventual goals to is create a market for trading intellectual property analogous to the commodity exchanges in Chicago. One thing that is clear is that IP has become an asset separate from the operating entity where it is created.

Interesting Inventions

Rand Bateman — Fri, 12 Feb 2010 15:12:00 GMT

Being a patent attorney is enjoyable because you get to see cutting edge technology and some creative solutions to problems that have plagued people. Some solutions, though, are a little odd. One example is the Easy Inter Burial Container in which a body is a placed in a giant screw and then drilled into the ground. It would definitely be more efficient - but may a little less solemn as grandpa spins into the ground.

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.