Tuesday, July 18, 2006

Wal-Mart Dreaming

Many inventors are Wal-Mart dreaming without knowing the hurdles.

According to a recent Wall Street Journal report, only 2% of businesses which try to become a Wal-Mart supplier (try to get their product into Wal-Mart stores) will make it to the trial stage.

The trial stage is rough. Applicants must provide inventory for 30-day trials at 500 stores (do your arithmetic here) and the product must show an 85% product sell through rate. In other words, 85% of that inventory must be sold. If the product does not sell that well, it is OUT.

Do you have (can you get) If enough inventory ready to ship? Will Wal-Mart customers buy enough to reach the 85% sell-through rate? (Most products will not survive.) And are your direct and indirect costs low enough to make a profit at the price Wal-Mart will pay?

Wal-Mart's "low prices" means "low prices paid to suppliers" also. Its stringent policies have put more than one small company out of business.

And if you succeed against these odds, do you have sufficient intellectual-property protection to hold your success against the competition. The competition will come.

More on intellectual property protection on my website at
www.noreklaw.com.

Saturday, July 15, 2006

Patent Term - How Long it Lasts

Life of U.S. Utility Patent Term
1. Begins day of issuance
2. Ends 20 years after filing date
3. Expect significant delay between filing and issuance
4. Ends prematurely if periodic maintenance fees not paid
5. Different terms for patent applications filed before June 8, 1995

Life of U.S. Design Patent Term
1. Begins day of issuance
2. Ends 14 years after issuance
3. No maintenance fees are charged

Life of U.S. Provisional
1. A provisional is a patent application, not a patent
2. A provisional will never issue, will never begin
3. Has a 'patent pending' term of one year
4. Must file a conventional, non-provisional application within the one year

Republished from my www.noreklaw.com website.

Meaningful Patent Protection

Meaningful patent protection means a patent that provides substantial protection:
1. The extent of patent protection is identified in the claims.
2. The claims are found at the end of the patent.
3. The claims recite strings of elements.
4. The claims cover items that have each recited element.
5. Broad patent claims have few elements.
6. Broad patent claims have no unessential elements.
7. Broad patent claims provide meaningful patent protection.
8. Narrow patent claims have lots of elements.
9. Narrow patent claims have unessential elements.
10. Narrow patent claims provide no meaningful patent protection.

Warning - a dependent claim (one that refers to a preceding claim) includes all elements recited in the referenced claim or claims.

Example - patent claim recites 'a chair having four legs supporting a seating platform'.
1. The claim covers all four-legged chairs even if they have other features such as a back rest and arm rests, because they have all recited elements.
2. The claim does not cover a three-legged stool, because it does not have four legs.

Example - patent claim recites 'a chair having at least three legs supporting a seating platform and a back rest.
1. The claim covers all four-legged chairs with back rests, regardless of their extra features.
2. The claim does not cover four-legged chairs without back rests.
3. The claim covers a three-legged stool only if the stool has a back rest.
4. The claim does not cover a single-leg (pedestal) stool even if it has a back rest because it does not have at least three legs.

Warning - if a claim recites an unnecessary element, competitors can avoid infringement merely by omitting that unnecessary element from their product.

Reprinted from my
www.noreklaw.com website.

Saturday, July 08, 2006

Patent or Trade-Secret It?

Should you patent or trade-secret it?

1. U.S. patent protection provides a right to exclude others from making, using and selling the patented subject in the U.S. for a limited time period.

2. Patent protection obliges the public dissemination of information embodied in the application, which must enable others to practice the invention and must disclose the best mode of practicing the invention.

3. The public is free to practice the invention when a patent expires. It has a set maximum longevity.

4. Trade secret protection has no set time limit. Its longevity is potentially unlimited.

5. Trade secret protection is lost if safeguards to maintain the secrecy are not sufficient.

6. Trademark secret protection is worthless against independent development.

7. Patent protection is enforceable against later independent development.

8. An election of trade secret protection, rather than patent protection, is usually irreversible, precluding the later filing of a patent application.

9. A patent application can be filed while maintaining trade secret protection if non-publication is requested at the time of filing, preserving the trade secret option and deferring the election issue to a later time.

Is a 'patent or trade secret it' consultation worth the cost? That is always a business decision. Patent or trade secret election consultations -- sometimes necessary.

Reprinted from my www.noreklaw.com website.

Protecting Slogans

How do you protect a slogan?

Answer: Let me repeat a well known quotation (or slogan?) and say "It ain't easy."

First, slogans are not in any way eligible for patent protection. Patents protect inventions.

Next, slogans, no matter how clever or how original, are not considered to embody sufficient original authorship for copyright protection. The U.S. Copyright Office will bounce your application.

Note that the U.S. Copyright Office does not judge the merit of someone's work. It can be a mediocre painting or a tedious article, or even a lousy poem, and it will be registered (provided of course that the required information is provided, on the correct lines).

In refusing to register slogans, the Copyright Office is not passing judgment on the merit of the slogan, but on the nature of the work as a mere slogan. The sufficient authorship requirement goes at least in part to policy as to what, and what not, can be held away from the public domain.

Third, a number of years ago it became trendy to place a trademark right up on the front of the product. My best guess is that the trend started with the little alligators. The little alligators were shown on the pockets of the shirts. Since the little alligators told everyone that you were wearing an upscale brand, the alligators drove sales.

The other manufacturers began adding their brand names to the front, and that drove sales too. Then even the off-brand brands came to the front, but that gets to a different story.

Well since putting the brand name on the front was now conventional, some folks successfully protected their slogans under trademark law, by selling t-shirts etc. with the slogan on the front and a prominent "TM" symbol. This practice went on for quite a long time before the USPTO started clamping down on it.

It still can be done, but not as easy as just slapping it on the front of a t-shirt or whatever. In fact, if a t-shirt front is your use specimen, registration will be undoubtedly be refused on the basis of merely ornamental use.

In addition, although trademark law does not require original authorship, common slogans and common symbols are excluded from trademark protection even if you establish appropriate trademark use.

Recommend you consult an experienced IP attorney before investing time or money into protecting a slogan. More information available on my
www.noreklaw.com website.