Saturday, April 29, 2006

American Inventor - A Conversation with Mark Martinez

You will notice that I did not provide live commentary for last Thursday's episode of American Inventor. Why? Several reasons: first, I a becoming more and more disillusioned with the show. We just do not get the whole story of what is going on. In short, I have it on reliable information from and about clients of the firm that participated in the show (but never made it on the air) that there are other audition rounds and elimination rounds outside of those that were aired.

Case in point, in Denver an inventor with off-road inline skates was passed to the second round, BUT for one reason or another he never made the second round. And how about numerous contestants that won a place in the second round that were never seen again. What happened to them? There most have been secret unbroadcast elimination rounds. What was the criteria and basis for these elimination rounds? Will we ever know?

And then there is the complete failure to address anything relating to the protectability of the inventions or whether the inventions have been invented before. Peter Lemire suggested to me that perhaps the show doesn't care about patents because they know that patent or not they can produce and sell the product and make millions just based on the promotion for the winning invention. This is probably true but the reality is for the gross majority of inventors, who have not had their inventions promoted week after week on a national television show, their only chance at success against more well heeled competitors is a patent. You would think that the show would endeavor to inform and help the inventing public by giving them pointers and such on how to do things right, BUT I suspect the producers really don't care about anything but ratings maximization.

Enough ranting...

I was really glad to see the dual traction bike advance to the next round. I believe it beats the Receiver's Training pole if only because of its broader appeal. It would probably sell well in an infomercial to be later transitioned to toy stores and national retailers, such as Wal-Mart.

Anyhow, I received a call Friday. I didn't immediately realize who it was. He was talking a mile a minute and was obviously very excited. He mentioned his name was Martinez, but that did not ring any bells as I have at least one client with that surname and have had consultations with several Martinez’s. But then something he said clicked in my brain and I realized it was none other than Mark Martinez of the Sackmaster 2000.

I will not reveal specifics about he told me because I imagine that he is still under a confidentiality agreement with ABC and the show but I can say he wanted to give his side of things concerning what really happened and how he was portrayed on the show. SUFFICE IT TO SAY: everything you see on a reality show is not in fact REALITY. Things are presented certain ways through editing and only telling part of the storing that can drastically change how a person, such as Mark, appears to the TV watching public. To a large extend this appears to have happened to Mark.

Anyhow, based on my conversation Mark Martinez seems to be a good if not great guy. I have had people call me or email as a result of a blog articles I have written about them, their company or their products and just spew anger and hatred.

I might have suspected that of Mark considering how critical I have been of him in my posts. BUT Mark just wanted to give his side of the story and didn't appear to be at all angry with me. I don't know if I would have been as civil and genteel as Mark if the situation was reversed. So kudos to Mr. Martinez's high character.

I did ask Mr. Martinez how things have been going since the show, and he told me the phone is ringing off the hook. So good luck to you, Mr. Martinez. I hope to hear that you have made millions for you and your family in the coming years and that the Sackmaster 2000 has helped save lives and property as you hope it will.

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Thursday, April 20, 2006

The First Three Finalists LIVE COMMENTARY

Mark Martinez (sackmaster 2000): He is not going anywhere. He refuses to listen to professionals that can help redesign his invention. Short sightedness will kill an inventor. Succeeding is often knowing when to let go and lets others take your vision and remold it as necessary. He lost when he fired the Designers and spent some of the 50k on a suit. How would you feel if someone you invested in spent some of the money you gave him/her on himself or herself?

Erik Thompson (Receivers Training Device): I don't know about this products potential. I think it can sell well to a small consumer base but it probably is not the Great American Invention. Nevertheless, I really like this guy's drive and attitude bith concerning his invention and his dedication to convincing inner city kids go to college. And he doesn't whine! IF personality was the primary consideration this guy should win this round if not the whole thing. Frankly, even if he loses, there will be plenty of people willing to invest in him and his product.

Sheryl McDonald (un-brella): I like the invention but the design may need more work. Sheryl doesn't have the same drive as Erik and although her invention has greater potential than Erik's I think Erik will win this round in a squeeker.

We will see in about 25 minutes....

UPDATE: The winner is ERIK!!!! I called the first one, but I am realistic and I don't expect to go four for four. Erik won't win the million (the invention just does not have the mass appeal) but I suspect in the end nothing will keep this great competitor in like down.

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Wednesday, April 19, 2006

American Whiner

Well after weeks of watching, I thought I should chime in on the American Inventor escapade. Additionally since I will be commenting a lot on last weeks double episode, I figured I should post it before this week’s episode airs (sorry I’ve been a bit busy this week). Sadly, I have become a bit disillusioned with the whole thing – the idea seemed really cool – but the reality has proven to be less then spectacular. As Kurt has already commented on the producers do not seem to really be concerned as to whether the “inventions” are truly novel or can be protected. While you do not need a patent to sell a product in the market place, you need one if you want to prevent competition from coming in and selling the exact same product. If I was going to pay someone a $1,000,000.00 advance on royalties, I would make damn sure that no one else was going to be able to copy the product 6 months after we go to market. In fact, the #1 watchers of American Inventor should be R&D people for major corporations – I’d be looking for ideas that we could pick off (because they are not eligible for protection, or they are not protected) and flood the market with the goods as soon as possible.

The second and possibly most annoying aspect of the show is that it has degraded into this whine fest about which contestant has the best sob story to tell. After watching the 1 minute presentations and then the personal statements I was about ready to chuck my TV out of the window! I mean come on - is this what America has degraded into – that these people believe that they should be the winner not because their invention will revolutionize the world, save lives, or make life truly better for people– but because they are penniless and all they have left is a dream?! These people don’t need to win - they need counseling – or possibly My Therapy Buddy!!! I have to tell you folks but thousands and thousands of people are in the same boat. Over 80% of all businesses fail in their first year and you can bet your house that all of those people gave it everything they had. Probably 1 in 4 of the companies I form for clients in a given year will go belly up by the end of that year. Tons of people out there put everything on the line and loose. Did anyone notice that 25% of the semifinalists were essentially destitute – one lady even brought in her last unemployment check! This pandering to the lowest common denominator is not what I expected when I first heard of the concept for the show.

The other interesting observation is that the inventors were really lousy at relaying why their product should be chosen as the best or would be the most successful in the market place. The most common answer was – “Because I believe in it”. Great, you believe in your product – so does everybody else who stood in line for hours trying to get onto the freaking show! How about providing basic market information concerning the industry your product is in – how many kids across the US play football and what is the dollar amount spent on football equipment each year, what’s the umbrella market doing these days, or on average how many women that have breast cancer actually loose their hair (and no its not all of them) and end up wearing wigs.

But I guess there is always hope. Hope that the contestants will get their acts together and stop playing the charity case, hope that the producers will give us a more in depth look at the process instead of the superficial crap we have been fed so far, and hope that America hasn’t degraded into a society that is just looking for a handout based on the best sob story. There’s always hope – but I’m not holding my breath. Call me cynical.

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Sunday, April 16, 2006

American Inventor - Why he shouldn't have received 50k

I am speaking of Mark Martinez, the man with the sand bag scooping apparatus. Frankly, I think his invention is one of the best of the final 12 BUT I wouldn't invest a dime in it.

Why? Simply, it isn't protected. Sure, Mr. Martinez has a patent but his patent will not prevent any serious competitor from essentially copying his invention without fear that they would lose an infringement suit.

You see, Mr Martinez's patent is a DESIGN PATENT. Design patent protect only the aesthetic aspects of an otherwise functional article. And here is the important part: when the functionality of a device merges with its aesthetics, the design patent drawn to the aesthetics is INVALID. This is precisely the case here!

So if a client came to me and asked me if he could make Mr. Martinez's invention legally without infringing the Martinez patent, I would tell him to change the look a little but not in a fashion that hinders the products functionality and he should be home free.

It is really a shame, because whether or not Mr. Martinez wins American Inventor, he would have had a significant amount of investor interest and more importantly investment following the show IF he had a good quality utility patent. Instead with no real patent protection, no serious investor will give him a dime.

Who is to blame? I wonder if his patent attorney told him about the negative aspects of design patents. Perhaps, he did, but the design patent route was chosen because of its low cost relative to a utility patent.

Please understand the following comments are not directed at Mr. Martinez's attorney: I don't know anything about him, and would not presume to draw any negative conclusions about this particular attorney.

No matter Mr. Martinez's attorney's actions, many patent attorneys improperly sell design patents as a cheap alternative to utility patents. Historically many of these patent attorneys have been associated with Invention Promotion Companies. They are more concerned with keeping the invention promotion companies happy rather than advising the client/inventor what was in the best interests of the client.

Frankly, if you ask me, attorneys and agents that don't act in the best interests of their clients by fully informing them of the limited scope of protection should be disbarred.

In the next installment, I will comment on the patent protection held by another finalist. Here is a hint: he has a utility patent but the claim protection is so narrow that designing around the device would be a piece of cake. In fact, I suspect the redesign that results from spending the 50k may not even read upon his own patent.

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Thursday, April 06, 2006

Great Names vs. Great Products

Over the years of dealing with individual inventors and start up companies I have noticed an interesting phenomenon concerning product ideas and their respective product names. Quite often clients come in with a business or product idea and have a corresponding name that is attached. It is very interesting to see how attached people become to the names they have chosen for their products or concepts. Often times the attachment is so great, or the fact that the trademark is really the product, that after a negative clearance search comes back and the individual finds out that most likely they will not be able to use their chosen trademark, they abandon the project. This has even occurred with product ideas that I have thought were quite innovative, clever and marketable. I think it has something to do with the thought that the individual believes that they have come up with the perfect scenario – the perfect product coupled with the perfect trademark, which in their minds will yield the perfect storm of product and marketing which will cause their product to be an overnight success and make them millions of dollars. Then when things don’t go exactly to plan – they feel the venture can’t possibly succeed because the marketing can’t possibly work without the “perfect” name for the product.

The fact of the matter is that at the beginning of a product’s life the value of the trademark is ZERO. You heard me correctly. It is worth – ZIP, NADDA, ZILCH. That is because the value of a trademark solely depends on the goodwill the public associates with it. This can be seen in the public’s awareness of the mark, the impression the public has of the goods the trademark identifies and the overall message your mark conveys to consumers. These attributes are usually built through marketing and other investment in raising the awareness of the company’s products or services in the eyes of the public. Goodwill can only be built over some amount of time. Sometimes it’s quite quick and happens in a matter of months and sometimes it takes years or decades. We can all think of trademarks that are associated with the best of the best and some that are mid-range and some that are associated with lower quality goods. What causes those impressions? Is it the name that was chosen – or is it the attributes of the products themselves that cause a Ferrari to be a Ferrari, a Rolex to be a Rolex, a Tiffany to be a Tiffany, or a Renoir to be a Renoir? Likewise what causes a Pinto to be a Pinto, or Timex to be a Timex ? The truth of the matter is that many of the well known trademarks are either completely made up (fanciful in trademark parlance) or have absolutely nothing to do with the product or service they identify (arbitrary). Think about Kodak, Xerox, Google, Ford, Dell and many other very recognizable trademarks – they are either completely made up or often are the last name of the creator/inventor/business owner. There is nothing special about the actual marks themselves – it’s the companies and their products that make them valuable. Products whose majority of value is derived from the catchy or clever names given to them are most likely gimmicks, and will not have the longevity or continued success that are the hallmarks of truly valuable trademarks.

Now don’t get me wrong – trademarks can be very valuable pieces of intellectual property and therefore steps to protect and leverage the value your trademarks should be taken. The application of an existing trademark to a new product offering can create instant credibility with consumers and instant brand awareness. However, in the beginning it is the product that counts. The important thing to remember is that crappy product with the “perfect” name is still a crappy product and a great product with a strange or odd name can take the world by storm and make millions. Just ask the guys at Kodak, Xerox and Google.