Sunday, January 29, 2006

Low Quality Patent Service Providers, Part 1

A while back I promised to write an article about low quality patent providers or perhaps I should say patent providers that provide low quality patent applications and other services. Well, here is the first of which will likely become a series on the topic. This installment discusses the dreaded “low cost provider”.

The first point an inventor should consider is a simple one that is often lost in the process of shopping for a patent attorney (or agent): Patent applications are not commodities! A patent application written to your invention by one attorney can vary from very poor quality to excellent quality.

Patent application quality is an easy thing for an inventor to lose sight of when deciding who to hire. It is extremely difficult for someone who is not intimately familiar with the patent process to judge the quality of one patent practitioner’s work versus another. So what the inventor does is choose on one the few aspects of the process he/she understands: price.

In about 25-35% of all the calls I receive from inventors inquiring about obtaining a patent, the first question is “how much do you charge to prepare a patent application?”. I actually know at this point that I will not be drafting this person’s patent application. I am not a “low cost provider” and I have no interest in competing with “low cost providers”. I tell the prospective client the general range I charge for a typical application. Often, I explain to them that they can find other practitioners that will prepare their application for less but I also explain that by and large the quality of patent applications prepared by “low cost providers” are in my opinion very poor. Almost universally with price first inquiries my explanation has absolutely no effect. It is too bad really as they will still spend a significant amount of money with a “low cost provider” and they will probably end up with a weak and essentially useless patent that will be (i) very difficult if not impossible to license to a company and (ii) extremely easy for a competitor to design around.

I have had a few applications written by “low cost providers pass” through my office in the last year or so generally for me to respond to an office action rejecting most if not all the claims. The initial rejections are not uncommon and the “low cost provider” is not to blame for the rejection. However, in responding to a rejection, I often need to reference the application’s specification to refute an argument or contention made by the Patent Examiner. With many of the low cost provider applications, there just isn’t any depth to the specification leaving me with little to draw upon. The inventor should keep in mind that in the great majority of cases, I cannot fix the situation because that would require adding new matter to the application and this is not permitted. And for the rare application I can fix, the process is not inexpensive and usually eliminates any savings realized by using the low cost provider in the first place.

I don’t want to imply with this post that I am extremely expensive. Rather, my rates are quite reasonable if you consider the quality of patent application you are receiving. The cost for having me prepare and file an application is usually 25-50% less than using a large national or international law firm. The quality is at least comparable. How do I know; well, I used to work for several large firms before forming my own firm.

I guess something some of you may be wondering is how much can you save using a “low cost provider” to draft and file a patent application for you over using me. Well, anywhere from a $500 to $2000, so if you really just want a patent to hang on the wall with your name on it, go ahead and use a “low cost provider”. However, if you are looking for a quality patent having as much breadth and strength that is available to you under the law, then give me a call.

Wait, wait, wait… there is a kicker: in most circumstances, while an average inventor will spend less using a “low cost provider” over me to draft and file a patent application, in a majority of the circumstances an inventor will spend more money overall going with a “low cost provider”. Confused? Let me give you a hint: it concerns the patentability search and opinion.

Stay tuned: the second installment will deal with patent searches but the third installment will discuss someone even more insidious than the “low cost provider”, the “high priced charlatan”.

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Post Your Comments!

A while back, we received an incredible slanderous comment from one of the owners of SOLA. We had no choice but to remove it. If you check our posts over the past 10 months or so, you will know what I am talking about.

During this time we also received a number of SPAM comments that really had nothing to do with our posts but were rather a form of marketing for someone else's blog.

Anyhow, because of these occurrences, we disabled comment posting. In the past several months, I have received unpublished comments in my email that I wish had been published on the Blog itself.

So I am turning the comments option back on and hopefully I will be able to leave it on this time. I encourage you to agree or disagree with us if you would like; just do not leave any comments that could be libelous or slanderous to us, or even more so, anyone else.

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Thursday, January 26, 2006

Client Going to the Olympics!

Michelle Roark, a client of Leyendecker & Lemire, will be representing the United States in Women's Freestyle Moguls in Torino. In the past few weeks, Michelle has won two World Cup events so she is definitely peaking at the right time. We wish her the best of luck and encourage all of our readers to watch her competition and route her on.

Our representation of Michelle has nothing to do with her skiing but rather an entrepreneurial venture of hers that we will be profiling in an upcoming Client Spotlight.

If you want to learn more about Michelle, her event and when it will be televised, see the NBC Olympic web site. Her event takes place on February 11, the first day of Olympic competition.

Good Luck Michelle!!!

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Tuesday, January 24, 2006

50 Cent Sued for Copyright Infringment

Rapper 50 Cent is the latest5 artist to be sued for copyright infringement. Lil’ Joe Wein Music, filed suit against 50 Cent in Miami federal district court claiming parts of 50’s “In DA Club” which appeared on the “Get Rich or Die Trying” infringe on former 2 Live Crew member Luther Campbell’s 1994 hit “It’s your Birthday”. Additionally, the lawsuit contends that Campbell’s song “I like it, I love it” can also be found on 50’s 2003 DVD “50 Cent- The New Bread” and it appears form the allegations contained in the lawsuit that permission or royalties were never properly paid to Campbell. The copyrights to “It’s your Birthday” and “I like it, I love it” are owned by Lil’ Joe Wein Music, which is apparently owned by Campbell’s former attorney. We’ll see how this one plays out, it looks to be an interesting case – including the story on how Campbell gave up the copyrights to his songs.

Thursday, January 19, 2006

SOLA update #2

The SOLA blog posts have been the most popular on our website.

Over the past several months we have received a number of emails concerning SOLA and its principles. I am not going to share the actual content of the emails because I have not had the opportunity to verify their veracity. Nevertheless, I have no reason to doubt them.

In one series of emails, I was sent copies of emails between a person posing as a prospective client with a member of the SOLA organization. Very interesting indeed.

In short, the gist of all the emails providing information about SOLA or its principals was not positive. IN fact, I have not received a single email or correspondence from anyone defending SOLA except for the defamatory blog comment from one of the SOLA founders as discussed in my previous update.

I would like to take this opportunity to solicit anyone who has had a good experience with this organization to email me with your story. If the story checks out, I will be happy to post it on this blog. For some reason, I do not expect anyone to take me up on this offer.

It is no secret that I do not like Invention Promotion Firms of which in my opinion SOLA is one of many. Concerning companies that approach you with an interest in helping you market or license your product my rule is simple: if they want any money from you (directly or indirectly) to finance their activities then STAY AWAY.

SOLA is a case in point. First, they send an offer to a patent inventor to assist him/her in securing a licensing deal for the inventor's patent and they offer to spend up to a certain amount of their own money in doing so.

Before they can begin, however, they require a business plan from the inventor that contains certain very specific information about potential companies that might license the inventor's invention. In my opinion, the information is so specific that it is nearly impossible for any mortal human to comply. But alas, SOLA has a company they utilize that can prepare the necessary information for a mere $1000-$2000. In one of the emails, I received, the SOLA representative writes to a prospective client that the company, Federated Document Services (or something like that), is located in Great Britain and is a wholesale provider of this type of information. I will tell you that I can find nothing out about this company on the web and I personally doubt its existence. Even if the company does exist, I believe it must be related to SOLA somehow and that it kicks back to SOLA some of the money it receives from inventors. I am still investigating the actual nature of the FDS/SOLA relationship and I would be indebted to anyone who can shed light on this.

Presumably after the business plan information is prepared by FDS, SOLA proceeds to contact the companies listed in the plan. To be honest, I have not been contacted by anyone who has gone this far. I would love to see the document prepared by FDS. I would love to hear success stories from anyone who has dealt with SOLA. I would love to know if there are any additional costs on the part of the inventor after having the business plan information prepared by FDS. So if you have anything to add feel free to contact me.

Now, there are legitimate marketing companies that help inventors market and license their products. The problem is their number is few compared to the number of invention promotion companies currently in business. Typically, the legitimate marketing companies will not directly solicit you. To find them, check out these websites: referrallist.com; inventorfraud.com; or http://www.uiausa.com/.

And to find out information about various invention promotion companies and their practices, see the InventorEd website. This sites is a cornucopia of information about these companies. I have been in contact with these guys and soon I will be sending them the information I have gathered concerning SOLA for their files and use.

Keep the emails coming...

Wednesday, January 11, 2006

Three Chords and The Truth Part II

In the fist installment of this article, we examined the case of Bridgeport Music, Inc. V. Dimension Films which surrounds digital sampling. Additionally I put forth the opinion of Peter Gutmann, an attorney who wrote an article in the October issue of IP Law and Business critiquing the decision and ultimately making his case for why music should not be afforded copyright protection. In this installment of the article we will look a bit more at Mr. Gutmann’s reasons why he believes music should not be entitled to copyright protection, as well as an analysis of a famous copyright case involving George Harrison.

Gutmann uses the "independent fixation of the sounds captured in a recording" concept of section 114(c) as a gateway into a fractured and strained reasoning on why music should not be afforded copyright protection. He points out that there are potential pitfalls for the individual relying on 114(c) due to the fact that certain case law exists that could pose pitfalls to the unwary. In particular, he cites the 1981 case of Abkco Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798 (S.D.N.Y. 1981), aff’d 722 F.2d 988 (2d Cir. 1983).

For anyone who practices copyright or is into the commercial side of music, the Harrisongs case should ring some bells. At heart in this case was the question of whether George Harrison’s 1971 "My Sweet Lord" infringed on the Chiffons 1963 hit "He’s So Fine". The songs in question both consisted of a 2 chord motif of G and C (the II and V chords of the key of F) and a 2nd motif that in the Harrison song consisted of F and Dm (the I and VI chords) and F in the Chiffons song. In particular, the trial court decision and the subsequent appellate court decision stand for the proposition that infringement may be achieved subconsciously. Therefore, no actual intent to copy needs to be shown, just a knowledge of the existing work and a substantial similarity between the two works. The court then assumes that because author had a generalized knowledge of the pre-existing work that the only logical reasoning for the similarities of the works is that the second author was influenced by the work on a subconscious level. In the Harrisongs case, Harrison admitted he was familiar with the Chiffons’ song. Although, even if he hadn’t admitted he was familiar with it, the court seemed all to eager to presume knowledge of the song due to the song’s popularity and the fact that Harrison was a musician. In fact, the court did presume that knowledge in the case of Billy Preston, the R&B singer who collaborated with Harrison on the song and actually recorded a version of the song which was engineered by Harrison.

If you listen to the two songs (the Columbia law library music plagiarism project has a great side by side comparison of the two songs and a great analysis of the case Click Here ) in their recorded format it is extremely hard to understand how the two songs are considered "identical" as the court asserts. Gutmann, no doubt fall into this category as espoused by the following statement "[i]t seems impossible to mistake the Chiffon’s teen-angst doo-wop . . . for Harrisons’s religious meditation." In general, I agree with Gutmann’s assertion that the songs do not sound alike at all. However, I think that Gutmann is a bit too quick to disregard the courtts findings based on several factors that are unique to the case. Most importantly, I think
Gutmann misses one key component- the fact that the court was examining the written sheet music only and not the recordings or lyrics of the two songs. Considering this fact, I think there are some factors in the Harrisongs case that can explain the court’s decision other than the use of copious amounts of illegal substances.

First, you have to understand that George Harrison was a guitar player who didn’t have any format music training. Guitar players for the most part do not read sheet music and correspondingly do not compose songs using musical notation. Harrison’s own recount of how the song was created supports this theory, as he recounted that it essentially was created while Harrison was vamping on some chords and then improvised lyrics over it at an informal jam session prior to an interview. It was only after the song was recorded that Harrison hired another musician to transcribe the recorded song into sheet music notation. Therefore, the music notation is not always an exact replica of what is actually going on in a song. The person transcribing the music makes their best attempts to capture the essence of the recording. Secondly, when comparing the two songs, the court listened to the works played on a piano and reviewed the sheet music to the two songs and not the songs as they were originally recorded. Therefore, when doing the comparison, the court was working from basically two "summaries" of the songs. If you listed to the Chiffon’s song, this becomes apparent as the song is actually quite busy and takes some effort to actually hear the chord progression (or melody). However, quite possibly the most compelling aspect as far as the court was concerned, was how the two basic chord motifs were arranged. In both songs the first motif is used four times followed by the second motif being used four times in one instance, and three times in the other. Additionally, a grace note appears in the Harrison version of My Sweet Lord (as opposed to the Billy Preston version) and in He’s so fine. The occurance of nearly the exact song structure and the presence of the same grace note was compelling enough to convince the trial and appellate courts that the songs were identical except for one phrase.

Upon a detailed review of the case, I don’t know that a necessarily agree with Gutmann’s characterization. I do agree that the court probably got the case wrong by not taking into account how the works were created and failing to address the fact that the music transcription may not be the ultimate expression of modern music. Additionally, the concept of "subconscious infringement" is quite bothersome, because it bypasses the traditional requirement to showing either through direct or indirect evidence that the author intended to copy the work. However, given the evidence presented, I can certainly see how the court reached its conclusion. I think the implications of the case are much narrower then Gutmann makes them out to be. From reading the opinion it is not just the similarity of the chord motifs that the court cared about, it was also the extreme similarity in the arrangement of both motifs. The case would most likely have been decided drastically different if Harrison’s song had a more traditional call and response such as A/A/B as seen in the blues. The fact that Harrison’s song not only contained the same notes, but also had the nearly identical, fairly rare arrangement allowed the court to conclude that the songs were identical.

Gutmann continues his analysis by examining the role of influences in music in general. I think most artists have influences that in part help define them as artists. Musicians are no exception. Gutmann points out several examples from classical music in which composers did pieces whose origins could be seen in another composers work. While I am a fan of classical music (Mozart being my personal favorite), I do not share Mr. Gutmann’s in depth knowledge to be able to offer counter examples. Therefore I am going to transpose the discussion to something that is closer to my home turf the blues. The blues is also a convenient medium because it has been a huge influence on American rock and popular music. Blues is often grouped with bluegrass, country and folk music in a category known as "American Roots" music. In general "American Roots" music finds its origins in the music of the African American population in the south. The music was performed generally by self taught musicians and was passed down through an oral tradition. The earliest blues we have record of is known as delta blues. Delta blues recordings sprung up in the 1920’s and 30’s and is in general characterized by a vocalist and unaccompanied guitar or a rather sparse arrangement of guitar, piano and harmonica. Delta Blues stars include Robert Johnson, Blind Lemon Jefferson, and Lead Belly. With the advent of the electric/ amplified guitar and the migration of southern blacks to northern cities such as Chicago in the 1940’s, a new form of blues evolved - known as Chicago Blues. Chicago Blues is generally seen as grittier, employing over driven guitar sounds and gritty over driven harmonicas. The chord progressions and arrangements are similar to Delta Blues, however the music reflects the influence of the artists’ new urban setting, and is characterized by a faster paced more driving rhythm than Delta Blues. Chicago Blues artists such as Muddy Waters, Son House, Howlin Wolf, T-bone Walker and countless others were clearly influenced by their Delta Blues predecessor, however their music was much more than mere copying of the delta blues style. They took the essence of their acoustic predecessors, and crafted their own new style. In turn, the Chicago blues artists inspired a new generation of artists ranging from the 1960’s through today and include the likes of Eric Clapton, Jeff Beck, Stevie Ray Vaughn, and more recently, Keb Mo and the Los Lonely Boys.

I think someone would be hard pressed to say that just because Chicago Blues was influenced by Delta Blues, that Chicago Blues artists are not entitled to protect their works. In order to be eligible for copyright protection, there just needs to be a modicum of creativity. Alfred Bell & Co. v.Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). As human beings, it is unreasonable to expect people to live in a vacuum. We are always going to be influenced be others. Copyright law takes this into account. The standard for protection is originality, not novelty as in patents. Therefore, copyright law does not extend copyright just to one novel about police detectives, it extends them to all detective novels as long as they are original - i.e. it is not substantially similar to another work and there was no intent to copy. Therefore, if my novel shadows some other book’s plot line and the characters seem very similar and it is shown that I 1) intentionally copied the work or that 2)1 had access to the work (e.g. own a copy of the work), then there is a good possibility that I may be found to be infringing. In terms of music, this means that two songs may have very common components, but as long as they are not substantially similar and there was no intent to copy, there is no infringement. As
the Harrisongs case shows, this may be difficult at times and the courts may get it wrong. However, just because it may be a difficult task to assess it doesn’t mean that we should throw our arms up and declare that music isn’t copyrightable. Due to the vast body of music already out there, and the fact that music is governed by certain mathematical relationships that limit the potential combinations that will result in sounds that are "appealing" to the human ear, it might make sense to narrow the scope of protection so we don’t get into a situation where the person who first plays the chords G D E can prevent anybody else from writing a song utilizing those chords. We should be taking a look at rhythm, tempo and the subtle accents that make each song unique.

Given the facts in Harrisongs, I would say that if the modified sample in Bridgeport was independently performed, there is almost no way that it would have been considered infringement. First of all, the musical phrase only appeared a few times in the song, and was not the main melody. Secondly, the pitch was lowered, which would have changed the phrase to completely different notes (unless they were lowered in octave increments), and the tempo was lowered stretching out the length of the phrase. This is a far cry from the facts in Harrisongs, in which the two songs are arguably identical.
In the end, society benefits from being able to protect music and musical expression. A rule that would allow sampling without compensation to the underlying artist undermines the underlying principal of our copyright law that allows artists to protect and exploit their works for commercial gain. If sampling is truly done as a form of homage or tribute as opposed to economic gain, then I would think that artists wouldn’t mind sharing some of the economic benefit with those artists that have come before, and whose shoulders modern day artists are standing upon. Additionally, a bright line test ends the confusion that often surrounds copyright cases. The test is quite simple - if you digitally sample - get a license first, or you will be in a world of hurt and a vast majority of those earning that are coming from your newest chart topper will be going to someone else. As time goes on and the body of copyrighted music builds up, the Harrisongs case will continue to pose a potential problem. Rational extensions of the "subconscious" infringement notion are quite troublesome. This is compounded with the court’s willingness to attribute musical knowledge about certain songs merely based on the fact that an individual is a musician. The court in Harrisongs assumed that because a person is a professional musician, they are also a walking encyclopedia of all music that has come before - which almost guarantees a finding of subconscious infringement. This line of thought can have far reaching effects, which could extend well beyond the rational bounds of what was originally intended for copyright protection. If widely adopted such a standard could actually pose a chilling effect to new works as opposed to fostering creativity which is one of the essential backbones of our copyright law. Only time will tell.

For now, all I have is my "three chords and the truth."

Friday, January 06, 2006

MARK YOUR CALENDERS!

On Wednesday January 11, 10-12AM MST, I will be heard live across the nation on the Tom Martino Troubleshooter radio show to discuss inventions, patents and other intellectual property. And if you have questions you would like Tom and I to answer, feel free to call in. For those of you that are not familiar with Tom Martino and the Troubleshooter show, I suggest you reference the Troubleshooter website. If you are in Denver or Colorado, you likely know who Tom Martino is and you have probably formed an opinion of him. To the rest of the Nation he is a relatively new radio personality: the show went National 4-5 years ago (I believe) and can be heard in most markets.

The format of his long running and very popular consumer help show has listeners call in with their complaints. Tom with the help of his staff and experts attempt to resolve the problems usually with great success. Additionally, Tom, a very successful entrepreneur, prides himself in helping others with sage advice concerning the word of business. Of course, my summary really does not do the show justice. You will just have to listen.

In addition to the radio show, Tom has regular features on as a consumer reporter on the Denver edition of FoxNews. Further, the Troubleshooter network provides a referral list of screened merchants and service providers that agree to abide by a basic code of ethics in dealing with customers and clients. The list can be found at Referrallist.com.

I have been Tom’s intellectual property law expert since joining the referral list in 2003. I have been on the radio show in numerous short segments over the last 2.5 years helping callers with their specific patent, trademark and copyright problems. This next Wednesday will be the first time I will be on the national show for an extended period of time to take calls specifically concerning intellectual property matters (I did appear on a Sunday local version of the show 1.5 years ago).

What will we talk about? I don’t know exactly as it will depend on callers and the host’s guidance (I suspect the host will be Tom but it could be his first lieutenant, Chris Kane, who is the regular substitute host). But I would be shocked if the topic of Invention Promotion Companies does not come up. If you have read this blog, and the firm Web Site, you know my feelings about them. No matter what happens, if you are interested in the topic of inventing and entrepreneurship, you will enjoy yourself.

I hope you get a chance to listen. Click Here for an Affiliate Radio Station nearest you. And remember to drop me and email and tell me how I did!

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Thursday, January 05, 2006

New Look and RSS Feed !

Well we have adopted a new look - not all together willingly. We have been experiencing issues with the blog and the sidebar placing itself at the bottom of the page when I am trying to post the second installment of three chords and the truth. In an attempt to remedy it we applied a new template to the blog. It did not help the problem, but we didn't feel like changing the template - so blue is the new color!

On a more positive note, we have added a RSS feed so if you subscribe to news groups on Yahoo or Google you can basically be notified when we have new material on the blog and you won't have to check it out on a daily basis to see if there is new material(at least that's our understanding of the whole thing!). Anyway, we have attempted to set the feed to only give you the first paragraph or so (we know we can be a bit long winded) just in case you are receiving the feed on a portable device. If the feed seems to be downloading the whole article - let us know and we will attempt to fix it so your PDA's don't get clogged up. Who knows, maybe next we will do podcasts - that should be interesting!

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Wednesday, January 04, 2006

Client Spotlight #3

Tactical Video Solutions is the producer of video camera that mounts on the end of a semi-automatic pistol's magazine, and feeds video to a small LCD screen that is typically mounted on the user's wrist.

SWAT and other law enforcement personal can use the camera to see around blind corners expossing only their firearm and perhaps their hand. Some versions of the system include infrared illumination to permit the officer to see in the dark.

Yuriy Umanskiy, one of the camera's inventors recently won the INVENTOR OF THE YEAR award from the Divinci Institute as discussed in this Rocky Mountain New Article. Congratutlations, Yuriy!

The product has also been featured on the local WB2 news and Channel 4 news as can be seen on their distributor's site (Tac-Arts, LLC) under News, Video & Stuff.

We prepared the patent application for the camera system and formed the company, Tactical Video Solutions. Further, we drafted and negotiated the company's distributor agreement.

You can also check out the camera at Tactical Video Solution's website.

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