Monday, May 14, 2007

Kudos to Advent Product Development!!!

Between Oct 1, 1998 and Dec 6, 2004, they had a perfectly imperfect record! That is, of 2452 people that signed Phase II representation Agreements, NO ONE, ABSOLUTELY NO ONE made more money than they gave to Advent Product Development! The beauty is this is the number the company itself presented in a recent lawsuit as reported by our friend, Stephen Nipper, over at THE INVENT BLOG.

And those of us in Colorado are especially lucky because we have our very own Advent Product Development office here in the state. Let's all give Advent Product Development a call and let them know how we feel about their good work.

So if you have an invention and a lot of money burning a hole in your pants, it seems you can't go wrong with the boys at Advent.

(I have been told sarcasm does not transfer well in writing. So in case you were confused, I am not advocating anyone use Advent Product Development and in fact my opinion is you should avoid them and other similar invention promotion companies like the plague.)


Business Method Patents - Are they worth it?

Good Question.

A recent article in the ABA Journal by Steve Seidenberg discusses the most recent group of business method patents to hit the PTO - tax patents. These patents cover useful, unique and nonobvious implementations of the tax law. Mr. Seidenberg's article takes on an anti-tax patent strategy theme in discussing whether tax patents in particular and legal strategy patents in general should be valid, mentioning that Congress may be changing the law to limit tax patents.

This got me thinking about business method patents ine general and whether they were worth the cost, given recent decisions by the Supreme Court. At Leyendecker & Lemire, we charge at least 25% more for business method patents, and one reason for doing so is to ensure that we take into account recent changes in the law so that your patent is as broad as legally possible, and sill retaining the likelihood your patent will issue.

The question to ask yourself is whether it's worth it for you (an individual or small company) to protect your unique way of doing business - be that providing tax services or otherwise? Well, maybe. Like other patentable areas, and likely more imprtant in the business method arena, you need to ask yourself how great your idea is as compared to what's currently being done by your competitors? Does your idea give you a competitive advantage over other persons providing similar services and products such that you will can forsee obtaining a return on your patent investment which is higher than the cost of the patent? As discussed on our new website, the answer to these questions ultimately come to whether you have the perseverence to see your idea to patent issuance and to subsequently enforce any patent that may issue. Although this process may cost more with a business method patent, the reward can be just as great or greater - allowing you to provide your unique service that no one else can provide.

If you can answer these questions positively, then you have what it takes to see your business method idea through to the end and should contact our office.

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Wednesday, May 09, 2007

A Denver Colorado Trademark Attorney Answers Your Frequently Asked Trademark Questions Part III

For Answers to More Questions Click Here

Ok, I have been so consumed with writing content to expand the useful content displayed on our main Website , that I have kind of neglected the blog. Never fear, we are back with the next installment of answering your frequently asked questions. This next one was actually inspired by a comment that was left on one of the earlier trademark articles.

Q: I have heard of something called the supplemental register. What is it?

A: In the federal system there are actually 2 registers that a mark or potential mark can appear on. The first is the Principal Register, which contains marks that as of the date of registration actually function as marks. Usually this means that the term identifying the goods or services must be inherently distinctive or has acquired secondary meaning. The second is the Supplemental Register, which is for marks that have the potential to be on the Principal Register, but have not quite made it yet.

Marks that are inherently distinctive are generally placed into 2 categories 1) fanciful or 2) arbitrary. Fanciful marks are marks that have no inherent meaning. Examples of fanciful names, Google (the word Google is based on an actual number, but the word itself is meaningless), Kodak, Xerox, Dell etc. Arbitrary marks are words that exist and have meaning, but are applied to goods in an arbitrary manner (i.e. they have no relation to the goods). A good example of this is Apple for computers. In general inherently distinctive marks are given the widest breadth of protection and are the easiest to register.

A step down from inherently distinctive marks are those that contain various levels of descriptive terms. If those terms are incidental to the mark in general, the registrant can usually get by with a disclaimer stating that they do not claim exclusive use of the terms except as they are used in the mark. If the mark itself is descriptive of the goods or services, the mark will most likely be labeled merely descriptive by the patent and trademark office. Merely descriptive marks may be registered on the principal register upon a showing of secondary meaning or acquired distinctiveness. Basically the theory of secondary meaning and acquired distinctiveness is that sure, the mark describes the goods or services, but through my extensive marketing and the name recognition of my products, when you say the term “XYZ” , they do not think of the type of goods or services being described, they think of my goods and services. It is up to the applicant to prove secondary meaning or acquired distinctiveness, by showing marketing expenditures, name recognition and consumer opinion surveys, and the length of time the mark has been used in commerce. If a mark has not yet achieved secondary meaning or has acquired distinctiveness, it may not be registered on the principal register, but it may be able to be registered on the supplemental register.

Essentially, the supplemental register is a limbo for potential marks that have the ability to become marks (meaning they are not generic terms for the goods or services), but have not yet achieved the requisite secondary meaning required for the principal register. There are some advantages of going on the supplemental register while you try to build secondary meaning including:

1. Appearance in the federal database
2. Ability to use the ® symbol in connection of the mark
3. Federal jurisdiction of suits involving infringement of the trademark
4. Federal jurisdiction over state law claims of unfair competition when they are substantially
related to a claim of trademark infringement
5. Eligibility for monetary damages as provided for in the Lanham Act, including infringers
profits, damages and costs, and in appropriate cases trebled damages and attorney’s fees

However, a mark on the supplemental register is not eligible for the following benefits available to principal register marks:

1. Cannot file on an “intent to use” basis (ie must be currently using the mark)
2. A certificate of registration on the supplemental register is not prima facie evidence of the
validity of the registration
3. A mark on the supplemental registry does not have a nationwide priority against third
party users (basically your rights extend only to the geographic area you are actually using
the mark)
4. Cannot achieve incontestable status
5. Certificate of registration of a mark on the supplemental register is not prima facie evidence
of the registrant’s ownership of the mark.
6. The Certificate of ownership for a mark registered on the Supplemental Register is not
prima facie evidence of the registrant’s exclusive right to use the mark in commerce on the
goods or services contained in the registration
7. Supplemental Register registrations cannot be registered with U.S. Customs for the
purpose of preventing the importation of infringing or counterfeit merchandise bearing the

Depending on the circumstances Supplemental Register may be a good idea and give you and your business some advantages. However, it is important to be familiar with the potential short comings of the registration. In the end, really it’s better than nothing and usually is a good place for marks to reside, while they are building their required secondary meaning. Of course a wise strategy is to choose marks that are arbitrary or fanciful and they you don’t have to deal with the situation in the first place.

For more information on trademarks please click here to visit our website.


Tuesday, May 08, 2007

Our New Website is LIVE!!!

Finally.... We have been working on a new site for two years, but we never got around to finalizing it. SO a few months ago we hired a graphic designer to generate our logos and we hired a web designer to design our site and he did a great job! See for more information about our designer.

The site is at

It has over DOUBLE the useful content in an easy to navigate setting.

I might add that we believe this is the best Intellectual Property website on the web aimed at entrepreneurs and individual inventors, but, of course, we are a little bit biased.

Please review it and tell us what you think. Be forewarned, however, to fully peruse, let alone read, the massive amount of useful content, you will need several hours.

Next, we will tackle organizing the BLOG. Hopefully, this won't take us two years!


Monday, May 07, 2007

Now or Never?

The past week has been rather sobering at the office: I found out that one of my clients dies of a heart attack at the age of 44. It drives home the point that one can't take anything for granted: even waking up in the morning. I only met with the client a couple of times nearly two years ago but he impressed me with his gregarious and friendly nature. He was certainly one of my more memorable clients.

The thing those of us can take from events like the foregoing is that there really is no time like the present to pursue you dreams and ambitions whether that is starting a business, commercializing your invention, or traveling around the world. As long as your are breathing, it is never too early or too late to begin. And realize that tomorrow, which may never come, may be too late. In other words, for those things and actions that are really important to you, such as your life goals, you may not be able to wait for another day.

As they say in a long dead language: Carpe Diem!