Tuesday, February 27, 2007

MySpace Wins Round 1

On February 13, 2007 U.S. District Judge Sam Sparks threw out the first suit filed against MySpace concerning a sexual assault of a minor by someone she met on MySpace, citing section 230 of the Communications Decency Act. The Act, which immunizes online service providers from state tort claims arising from information or content posted on a service provider's website by third parties.

The plaintiffs argued that section 230 only applies to defamation claims and other claims (trademark, copyright) concerning the actual content of the materials posted, and was not intended to bar other actions based in tort. Judge Sparks, rejected their argument and stated that the current situation is similar to Zeran v. America Online Inc. 129 F.3d 327 (4th Cir. 1997) - a 4th Circuit case that found that AOL was immune from suit for alleged damages resulting from their refusal to take down certain messages which contained offensive remarks concerning the plaintiff and references to the Oklahoma City bombings and contained his phone number. Because AOL and MySpace are merely intermediaries and are not responsible for the content - they cannot be sued.

Interestingly, enough we have had a growing number of calls come into our office concerning whether or not an individual can sue a Internet service provider or a website provider due to content posted by third parties. As the above case and several other recent cases concerning defamation show, in general the answer is no. The only person that may be held responsible for these sorts of actions are the individuals who posted the materials. A lot of time the service providers are the more appealing defendant because determining who the actual poster of certain content is may prove to be difficult and most times they are judgment proof making the company look like a deep pocket from which a judgement could be collected or a monetary settlement reached.

Anyway, I expect an appeal will be filed on this, so it may not end here. Stay tuned.

Saturday, February 24, 2007

Inventorshelpline.com in Temporary Receivership

The Patent and Trademark Insitute of America, the company behind InventorsHelpline.com, is in Temproary Receivership as reported at the top of their website and ordered by the Honorable Gerald Bruce Lee in the matter of FTC v. International Product Design, Inc., et al., Case No. 1:97-cv-01114-AVB . It appears the FTC is attempting to bring the long arm of the law down on another Invention Promotion Company.

By the way, the InventorsHelpline.com site is interesting. They even have some infomerical type videos with Doug Lewellyn or People's Court fame interviewing one of the company's CEO. The company's message is inticing and I can see why they have had success in getting inventors to sign up with them. There is only one small problem in my opinion: Companies like this just don't deliver in the end! They offer very little value for the money spent.

Maybe this company will close up shop after the litigation is finished. BUT don't bet on it! Remember the line from the Eagles Song: "the lure of easy money has a very strong appeal".

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Friday, February 23, 2007

Invention Promotion Companies: Response to an Anonymous Comment to my December Post

An anonymous reader wrote the following in response to my blog article about the poor success of Davison and InventHelp, two of the more well known Invention Promotion Companies. I felt his response desired a response from me. Read my article, his comment and my response thereto and draw your own conclusions. And, of course, feel free to leave comments of your own either in support of me or the anonymous reader. Here is his unedited comment:

I am not an employee of Inventhelp or Davision, I am a patent searcher. Your bashing marketing companies because they are not making inventors rich. Do you make your clients rich? How many applications have you completed for clients and those clients ( I am talking about a regular person not a company) turned around and magically got rich? When you perform patent services for a client that is all they get, if there lucky. Maybe the get a patent. A marketing company at least tries to sell there idea's to companies so they can make money. If I had a choice to obtain a patent I would not go to an IP firm and get a patent. What does that give me, a patent. Now what? I am an inventor. I don't have contacts to large corporations to sell my IP. It is NOT marketing companies fault if corporations do not buy/license a clients patent. But you are holding them responsible for it. If you put something on Ebay to sell and it does not sell is it Ebay's fault? No, no one wanted what you had to sell. So your feelings toward marking companies can NOT be because the percentages of clients that make money is low. It can't be because some marketing companies are crooks because there are a lot more crooked patent attorneys out there than marketing companies. So what is your exact beef with marketing companies?

My response to each point:

I am not an employee of Inventhelp or Davision, I am a patent searcher.

OK, I guess I have to take your word on that since you did not reveal who you are. Why not put your name down. Plenty of inventors read this blog and may be looking for a good patent searcher. Heck, my firm does orders a lot of patent searches and we can always use another great patent searcher. If you are great, let us know. Why not plug your business?

My suspicion is that while you may not work for Davison or InventHelp, you may work or derive your work from one of these companies or another invention promotion company. In the interest of full disclosure, I would appreciate it, if you would come clean.

Your bashing marketing companies because they are not making inventors rich.

Actually, that is not true. Not once in my article did I use the word rich. Truth be told as indicated in my article: the success rates I indicated were the percentage of customers of the two companies that actually made more than they spent with the company. The numbers came directly from the companies' own web sites. I was merely reiterated what they themselves had reported.

If you read the rest of my blog articles and review my website including my FAQ section, you will realize I am very forthright and honest about how few inventors actually make money from their invention. I sincerely believe, however, the success rates of companies like Davison and InventHelp are WELL BELOW industry norms, and their own statistics appear to bare this out.

Do you make your clients rich? How many applications have you completed for clients and those clients ( I am talking about a regular person not a company) turned around and magically got rich?

The honest answer is none: it is almost impossible for anyone to "magically" get rich in the inventing game. It takes lots of hard work and perseverance. Again, I talk about this in the aforementioned FAQ section. Now are there clients of mine that commercializing their inventions and have a real chance at being successful? You better believe it! One of the big problems with the invention promotion companies in my opinion are that they sell the dream with almost no dose of reality: they would have you believe that if you use them, you will become or may become magically rich. This just ain't true and their own numbers prove it!

A marketing company at least tries to sell there idea's to companies so they can make money.

I just can't agree with that statement: I honestly don't believe invention promotion companies actually try to make their clients money. OK, that is a bit harse. Perhaps, they do try a little: a very very little.

It is my very strong opinion that inventors can do so much better trying to sell their inventions to companies than any invention promotion firm can. I would venture a guess that the success rate of individuals promoting their own inventions is on the order of 1-5%. I have not done any studies but these are numbers I have seen mentioned. If my belief is true this would mean that an inventors chances of success on their own is about an order of magnitude greater than the chances an invention promotion company will be successful.

By the way, there are a select few upstanding marketing companies out there. They are, however, hard to find. They don't have huge marketing budgets so you will not find them advertising on television or in heavy rotation on the radio. I suspect they believe in spending the money clients give them on actual services instead of expensive marketing to draw in new clients.

It is NOT marketing companies fault if corporations do not buy/license a clients patent. But you are holding them responsible for it.

OK, let us assume it is not the invention promotion company's fault. If we take you premise that corporations aren't buying the inventions promoted by the invention promotion company, why would any well informed inventor ever use one of these companies? And why would any invention promotion company, and more particularly its owners, knowing that they are not, except for a very few select and rare instances, going to be able to sell an inventors idea to a company continue in the business. Where is the pride. If I knew I was just taking people's money with the realization that almost all would never receive any value back from the expenditure, I don't think I could sleep at night.

I respect my clients and try to lay everything on the table: their chances of success; whether a patent makes sense for them in terms their chances at getting quality protection; and the potential costs of the process. I never promise that a client will be able to license an invention to a company. In fact, I let them know how difficult and rare that is. I don't get the feeling the invention promotion companies as a whole are doing this. If you know of exceptions, please point them out. I will investigate and if this turns out to be true, I will be the first to announce it in this blog.

It can't be because some marketing companies are crooks because there are a lot more crooked patent attorneys out there than marketing companies.

I guess I don't understand exactly what you are trying to say in the above sentence but I will take a stab at it anyway. I HAVE NEVER ACCUSED ANY PARTICULAR INVENTION PROMOTION COMPANY OF BEING CROOKED. In fact, I believe that most try to operate within the law if not barely. I do have my suspicions about a few but I have never accused them publicly of breaking the law (as a point of clarification, I have no knowledge or evidence that Davison or InventHelp, the subject companies of the original article, are currently breaking the law).

The fact is, however, many invention promotion companies have in the past found themselves in trouble with the law and several executives and owners have done time. In the past, several invention promotion companies have been sued by the Federal Trade Commission including the Invention Submission Corporation (ISC), which is now goes by the service mark InventHelp. In fact, ISC paid the FTC 1.2 million dollars pursuant to a 1994 settlement. See the FTC RELEASE for more information. Now, it has been a while since the settlement, so perhaps ISC has changed it ways. Their website and marketing materials seem to indicate a change for the better. Nevertheless, I do not feel that their services are a good value for consumers.

EDIT - after writing the foregoing, I came upon this judgement against Davison from early 2006. This is a good read that reinforces my points. And keep in mind these are conclusions of law in fact made in a Federal Court after Davision was sued by the FTC. Anonymous may argue Davison has changed since then BUT do companies like this really change? I personally doubt it. And why spend hard earned money with a company with a checkered past when there are reputable marketing companies out there (albeit harder to find because of their much smaller marketing budgets). Anonymous: I would love to hear your defense of Davison in light of this Federal Court Judgement. And answer me this: in light of this ruling, would you actually recommend someone use Davison?

On the subject of crooked patent attorneys, I am sure their are some, although I personally don't know of any. If you have read my blog, you will see that I provide advice to inventors on how to pick a patent attorney. You would also know that I am not a supporter of firms that could be classified as "patent mills". There definitely are a number out there that do not operate in a manner that I would find acceptable in my firm. On the other hand, there are a large number of hard working and conscientious patent attorneys out there as well.

So what is your exact beef with marketing companies?

I don't have a "beef with marketing companies" in general, just Invention Promotion Companies. And my "beef" is quite simple: I feel they don't provide value for the price they charge.

Whether you ever consider using my firm or not, please think long and hard before spending your hard earned money with an invention promotion company. At least before using one of these companies, do your homework. Read the opinions of others. Check out the company's past particularly to find out if they have ever been south of the law. Check out the inventor resources at the USPTO. Read the InventorEd website. And by all means peruse our blog archives. In the end, some of you may hire an invention promotion company, but at least you will be reasonably informed when you do.

Mr. Anonymous, I hope you get a chance to read my response to your comment and I will look forward to your reply. I welcome an open discourse on this topic.

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Tuesday, February 13, 2007

36 Hours for Kids

Well, its that time a year again! Those of you who have followed our blog for a while may remember my post from a year ago highlighting an event happening here in Denver over the next 3 days (February 14-16). Once a year Alice 105.9, a local Denver radio station suspends its normal programming to host a radiothon benefiting the Children's Miracle Network and the Children's hospital here in Denver. If you tune in you will hear some incredible stories of the work being done at Children's as well as stories from the patients and their families. Some tell of miraculous recoveries, and some sadly have a less happy ending. No matter what the result the stories always recount how grateful the kids and their families are for the wonderful treatment and care the staff at Children's gave them.

Personally, I have not needed to use the services Children's offers with my two kids. However I donate every year for those people who do find themselves in need of their services and I know that if ever the time comes where we need their services, they have the resources they need to give us the best care possible.

If you would like to contribute you can call 1 800 458 KIDS (6AM - 6PM)or you can donate online here . If you are not in the Denver metro area and would like to listen to the radiothon follow this link and click on the 'Listen to us live" link in the upper left hand corner.

Thursday, February 08, 2007

Should I Patent My Idea?

I answered a question in a forum at http://www.evancarmichael.com/ recently and I thought I would repost me response here. I did not have time to peruse the aforementioned web site but from what I did it is a good resource for entrepreneurs, so you might want to check it out.

The Question:

How do you decide if you should patent an idea or not?

My Answer:

Here is my straight up attorney-type answer: It depends!

And if you expected something different from an attorney than you just don't hang around attorneys that much.

Actually, I concur with most of what Stephen, another patent attorney, wrote. However, careful review of his writings will reveal the general lack of an answer as well.

Hey, we don't beat around the bush because we enjoy confounding non-attorneys so much. The fact is the answer to your question is so fact and situation specific that without a lot more information we can’t even begin to advise you.

Here are some questions you should ask yourself:

1. What is the size the potential market for the invention? Obviously, the bigger the market size and the potential demand for your invention, the more likely a patent will pay off. Some markets are just too small and you may never recoup the expense of obtaining the patent.

2. Am I going to make and sell the product myself or do I want to sell or license the idea to a bigger player in the industry? If the answer is the later you will almost definitely want a patent as most companies (but not all) will not even talk to you unless you have a patent on file. And if you don't have a patent: why would they buy an idea that they can just move forward and make without paying you a dime? Now if you intend to produce and sell the product yourself, the patent may or may not be as important.

3. Can you live with the chance that your invention is very successful and as such your invention is copied by others with better financial resources than you and because of this they make a fortune and you do not? This is not a trick question. Some people will not care one way or the other while for others the above scenario will eat them alive.

4. Can you afford to patent your invention? I had a client that would drive around the affluent neighborhoods on trash day, taking items that others had discarded and then go up to the local flea market and sell the "trash" for cash to pay me. I tried to dissuade him from some of his filings but he had the bug. Yes, for some just like alcohol or gambling, inventing can be a disease. The reality is that maybe a couple out of every hundred or so inventors make money from their invention so generally speaking Don't spend money you cannot afford to lose on a patent.

5. As a follow on to the question above: Do You Have What it Takes? Truth be told: most of us do not. What I mean by this is that if I tell you that only 1 in 100 patentees will actually make money, will that cause you to hesitate in moving forward with your invention or will you shrug my statement off since to you there is no question you are the 1 in 100 and not the 99? To make it you often need that kind of dedication to your invention. If you don't believe in your invention enough to do whatever it takes to make it a success, the very real chance is no one else will either. In the end the invention is the easy part, what you do with the invention is what separates the successful inventors from the wannabees.

Anyhow, that is enough rambling from me right now. If you want to know more, check out the patent section of my Firm's website, www.lld-law.com, and in particular the FAQs. Also, check out my Firm's blog. In large part it is aimed at entrepreneurs and independent inventors. See www.lld-law.com/IPblog.com.

Remember, I (or anyone else for that matter) cannot answer to your original question. We can only give our opinions. What is the right answer for some may be the wrong answer for others. Ultimately, do your homework and proceed in the direction that is best for you. And if you do go forward and embark on patenting and pursuing your invention, understand the journey itself maybe reward enough even if in the end the result is less than what you had hoped. BY THE WAY, before becoming an attorney, I traveled down the entrepreneurial road: you can guess the outcome given that I am now doing something completely different. As k me if I have any regrets.

Let me part with one last hypothetical: 20-40 years from now you look back on this decision, which will you regret more:

1. Having tried and spent a substantial some of money and unfortunately the venture did not bear fruit; or
2. Having given up on the idea and not tried and wondering what would have happened had you tried.

Good Luck,


Tuesday, February 06, 2007

The "Apples" kiss and make up

Apple computers and Apple records came to a new licensing arrangement after much controversy concerning Apple Computer's I-tunes service. In the new deal all "Apple" trademarks will be owned by Apple Computers and the mark will be licensed back to apple records for a limited scope of use.

Truthfully, this approach makes the most sense. if you look at the settlement agreement inked in 1991, (click here) it really doesn't work well in today's digital age (a mere 16 years later). Over the years the "Apples" have gone to battle with one another several times, so this move should help reduce that friction. Although something tells me that we may hear from these two again in the future.

So don't worry folks - you can still have your i-tunes !