I was right.

Way back on April 19th of this year, I wrote about the potential for patent reform occuring this year, and stating my case for why I was against it (http://www.lld-law.com/2007/04/will-patent-reform-occur-this-year.html#links). Recently, the Wall Street Journal ran a commentary article on the Patent Reform Act of 2007. Although I missed this article, I was lucky enough to see the responses the article generated in the letters to the editor section that was published in today's (8/14/07) Journal.

I'm not sure if it was my blog article which paved the way for these reponses or not (I'd like to think it was), but thier sentiments echoed much of what I wrote about in my original article 4 months ago. For instance, David P. Vandagriff, the VP of IP for Helius, Inc. (www.helius.com), an IP broadcasting company, noted how interesting it was that the medical industry, universities, and most venture capitalists are all opposed to the act, which was somthing I mentioned four months ago. Mr. Vadagriff goes on to echo what I stated in April - saying "this reform bill is the brainchild of a small group of very large computer technology companies including Microsoft, Intel, and Oracle. It is not coincidental that each of these companies has been a defendant in an antitrust suit. They rely upon market power to maintain their dominant positions and are serial patent infingers."

I don't mention this article simply to show my view is commonly held. I'm writing this blog article becuase this Act is not going away unless you, the individual inventor, the small company with great IP, or just a member of the the general public who doens't want big business to win dirty yet again, contact your representative or senator and tell him or her why you DON'T want this bill to be passed. If we don't get this bill killed, the US patent system will essentially be "run" by the biggest technology companies on the planet.

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 www.coloradoiplaw.com, 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.

Will Patent Reform Occur This Year?

Yesterday, Wednesday, April 18th, 2007, the Senate and House both introduced "new" bills to overhaul the patent system. However, these bill aren't "new". This legislation looks like the same bills that have been introduced in years past. In one corner you have "Big Business" supporting the legislation and in the other corner you have "Individual Inventor" against the legislation. These sides are evidenced by a recent quote from Emery Simon, counsel to the Business Soware Alliance, an organization that apparently recieves funding from Microsoft, Apple, and HP. Mr. Simon is quoted as saying "The object of the patent law is to promote innovation and we think the balance has been tipped away from that and has created too much incentive for... litigation."

Well, this seems like an appropriate statement from an attorney who is representing the interests of Microsoft, who just happened to have lost a $1.52 billion patent infringement case in February 2007. If I were Microsoft, I'd sure as doo-doo try and change the patent law too. I'd want to make sure that the next time I was caught stealing patented ideas I wouldn't have to pay as much. The unfortunate reality is that if this legislation goes through, which is likely this time around because the Dems are in control (& the Repubs are against the legislation because they are well-funded by the drug companies, who are against this type of bill since it would allow easier creation of generic drugs), we all lose in the long run.

With this bill, innovation would only controled by the big guys as VC's would be less likely to invest in companies based on patent protected products and services as the patents they hold will be less valuable. This is just one of the MANY problems with this legislation. Do your civic duty and contact your Senators and House Representative & tell them why they need to vote AGAINST this bill. Like many governmental systems, the patent system is not perfect. But it's better for everyone if we don't let Microsoft & the other "big boys" write the laws for us.

You can find Leyendecker & Lemire on the web at www.lld-law.com.

A Denver Colorado Patent Attorney Answers FAQs: Part 6

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

We continue our popular Patent FAQ series below. Portions of this series can be found on our website. Also, check out our Trademark FAQ series, which, until our new and improved website is launched, can be found only in this BLOG. And if you have not already, click the link above or below and go to our website and add it to your favorites. The new and improved site with about 75% more useful content is nearing completion and should be available within the next month or two. It will be an indispensable resource for entrepreneurs, small companies and individual inventors alike.

6. What are Claims and why are they so important?

Simply, claims are one-sentence descriptions of what the inventor considers his invention. The claims legally define the scope of an invention and inventor’s right to exclude others from making, using or selling his invention. Without question, the claims are the most important part of the patent application and subsequent patent.

The claims are also the most misunderstood part of a patent application. They are often written in patent attorney legalese and are very difficult for someone not trained in patent law to read and properly interpret. The typical inventor is unable to judge the quality of the claims provided in a patent application and if the patent attorney has not done a good job, the scope of protection of any resulting patent may be severely limited to the point where the patent has little or no value in preventing other from copying your invention. It is an unfortunate reality that many patent agents and attorneys are also not very adept at writing good legally defensible claims, whether that is because writing good claims would take too long or because of simple ignorance concerning the rapidly changing state of patent law. On the other hand, a good patent claim may provide you with a scope of protection that is greater than you contemplated before you went to see your patent attorney. Accordingly, the choice of quality patent counsel is of the utmost importance.

To give you a better understanding of claims, there are basically two types: independent claims and dependent claims. An independent claim is a complete description of the invention in and of itself. It comprises a set of elements (or limitations) that when taken together in combination defines a novel and nonobvious invention. A dependent claim is a claim that includes additional limitations that further define and limit an independent claim. Consider the example of a pencil with an eraser as provided below:

1. A writing device comprising:
(i) an elongated core comprised of a first material, the first material having a property of exfoliating when frictionally engaged with and moved across a surface;
(ii) an elongated shell comprised of a second material substantially surrounding the elongated core, the elongated shell having a first end; and
(iii) an eraser, the eraser being attached to the first end.

2. The writing device of claim 1, wherein the first material comprises graphite.

3. The writing device of claim 2, wherein the second material comprises wood.

Claim 1 is an independent claim. Claim 2 is a dependent claim that includes all of the elements of claim 1 plus the additional requirement that the first material be graphite. Accordingly, if these claims issued in a patent and a person made a wood pencil with a lead core, he would be infringing claim 1 while not infringing claim 2, because claim 2 requires that in addition to all the elements of claim 1 that the core be made of graphite. Claim 3 is dependent on claim 2 and accordingly includes all the limitations of claim 2 and claim 1 from which claim 2 depends as well as the additional limitation that the second material comprises wood. Accordingly, if a person made a mechanical pencil with a graphite core material and a plastic shell he would still be infringing claim 1 and claim 2, but he would not be infringing claim 3.

How does an inventor know if the claims that a patent attorney wrote for his invention are any good? We do not have an answer for you. Our basic response would be to question your patent attorney before you hire him. Listen to his responses. Does the attorney seem like he takes the claims portion of a patent application seriously. Ask him/her how much time it takes to draft a set of claims. If he/she indicates it can be done in a couple of hours, you can rest assured that the claims will probably not be very good. If you prospective patent attorney says he can draft an entire application for $3000 and his hourly rate is $225 or more, you can be confident he is not going to spend more than a few hours on the claims. In our opinion to draft three really good sets of claims (you can have up to three independent claims in your application for the basic filing fee) takes around 5-8 hours. And incidentally, the shorter the length of the claims, the better they are likely to be. Long claims with a lot of additional language are almost always too narrow!

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

A Denver Colorado Patent Attorney Answers FAQs: Part 5

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

5. What is the Difference between a Design Patent and a Utility Patent?

A utility patent is typically what comes to the mind of most people when they think of a patent. Utility patents can be obtained for new and useful processes, machines, articles of manufacture or compositions of matter. Utility patents may not be obtained for: printed matter (usually protected with a copyright); naturally occurring articles; scientific principles, mathematical laws; and “inoperative” inventions, such as perpetual motion machines that are incapable of achieving a useful result.

Unless otherwise stated, throughout this web site when we use the term “patent” and “patent application”, we are referring to a utility patent and utility patent application respectively.

Art is generally not within the purview of utility patents. Sculpture, paintings, and music are not considered to possess utility (or usefulness) and are, accordingly, not patentable. Creative works are typically protected through copyright. Patent law does overlap with copyright concerning design patents. To learn more about copyright law, click here.

Design patents protect the novel, nonobvious ornamental designs of articles of manufacture. In other words, the design patent protects the way an article looks. Unlike utility patents, there is no requirement that the ornamental design be useful. Rather, a design patent cannot protect the features of an article of manufacture that are dictated wholly by functionality. It is not uncommon to apply for and receive both a utility patent and a design patent for the same article provided the novelty and nonobviousness of the article resides in both its utility and its ornamental appearance.

As mentioned above, sculpture is protectable through copyright, but since it is an article of manufacture, it is also protectable through a design patent. Because registered copyrights are inexpensive to obtain when compared to design patents (typically about $300 versus about $1000-2000) and considering the much shorter term of a design patent (14 years), it is rarely prudent for a sculptor to apply for and obtain a design patent when a copyright will provide adequate protection. Furthermore, since copyright protection actually applies to a creative work immediately upon its creation, the sculptor need not even apply for a registered copyright, although by registering the copyright, the sculptor does gain certain additional avenues of legal recourse against those who copy his work.

Copyrights are not available, however, for articles of manufacture that are primarily functional unless the nonfunctional portion can be conceptually or actually separated from the functional elements of the article. For example, a 1.5-foot high sculpture of a person is protectable through copyright whether the sculpture stands alone or serves as the base of a table lamp. Interestingly, the lamp's design (i.e. the sculpture) would also be protectable for use in a lamp using a design patent. There is a degree of overlap between copyright and design patent protection but in general, design patents are most useful to protect the ornamental and non-functional features of an article of manufacture that possesses functionality.

Generally, a design patent by itself without an accompanying utility patent is of little use to the independent inventor. Some unscrupulous invention companies have in the past used the design patent as a way to inexpensively (for them) obtain a patent for their customers. They, however, often failed to inform the customer that the design patent only pertains to the look of the device and that a competitor could produce a similar device that has the same functionality without infringing the design patent. And if the competitor cannot produce a device having similar functionality as the design-patented device without copying the look of the device, than the design patent is probably invalid because the look of the product is not wholly ornamental but is at least partially dictated by function.

We do recommend that an inventor or company consider obtaining design protection when they intend to produce an article of manufacture themselves and the design is unique enough in their opinion that there is a concern about someone copying it. Often a design patent is a good companion to the utility patent as it further protects a particular product.

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

A Denver Colorado Patent Attorney Answers FAQs: Part 4

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

Question: Can I get a patent on my idea or invention?

We have observed over the years that many people think that in order to receive a patent a person must invent something earthshaking or of great significance. The truth is that merit, potential and/or groundbreaking significance have nothing to do with obtaining a patent for an invention. The United States Patent Office makes no judgments as to the merit or potential value of your invention. Rather, they look to see that an invention satisfies three basic requirements: (1) utility; (2) novelty; and (3) nonobviousness.

Utility is by far the simplest requirement to satisfy requiring only that the invention serve a utilitarian purpose. In other words, the invention must be useful. Most inventions easily satisfy the utility requirement. Some types of creations excluded from patentability for lacking utility include: creative works, such as music, literature and sculpture; scientific or mathematical algorithms, which are considered to be discovered rather than invented; and purely mental processes, which can be performed solely in one’s mind.

Novelty merely requires that someone else did not invent your invention and disclose it to the public before you. In general, a patent search combined with a patentability opinion is very effective in determining whether an invention is novel. If your attorney believes that your invention isn’t novel, he/she will usually recommend that you do not file a patent application.

Nonobviousness simply requires that the invention not be obvious in light of prior art to someone of ordinary skill in the art in which the invention is to be practiced. Obviousness or the lack thereof is very difficult to objectively judge. Not surprisingly, nonobviousness is the most common hindrance to having the claims in a patent application allowed. Further, it represents the greatest source of disagreement between patent attorneys and the patent examiners in the patent office. An examiner will contend that a claim is obvious, the attorney will respond with a legal argument why it is not, and this may go on and on until one side gives up. Mind you, arguing with the examiner costs money in terms of (i) having your attorney draft office action responses and (ii) continuing the prosecution of the invention. Many attorneys will try to reach an accord with an examiner in a telephone interview after the second and typically final office action has been presented. We will, however, almost always recommend a telephone interview being conducted after the first office action

An obviousness rejection by a patent examiner usually takes the form of two or more prior art references (typically issued patents) that when combined teach all of the elements in one or more of the patent application's claims. Often, however, the attorney can successfully argue that the combination of the references is not proper even if the two references contain all the elements of the claim. In order to combine references, the examiner must demonstrate that the two references pertain to the same field of art as the subject invention and that there is a motivation to combine the references. Interpreting these legal standards and applying them to the facts of a particular patent application and rejection are not easy and are best left up to a qualified patent attorney. Suffice it to say, just because you think an invention may be obvious does not mean that the invention is obvious in terms of the requirements for patentability. Obviousness as viewed by you is probably based on your common sense and life experiences while obviousness relating to patentability is based on statute and case law. In our experience, the legal standard of obviousness is much narrower than one would imagine and accordingly, can often be argued around to obtain a patent.

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

Denver Colorado Patent Attorney Answers FAQs: Part 3

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

Question: What is a Patent?

Simply, a patent is a personal property right granted by a government that gives the owner an exclusive right to prevent others from making, using or selling a claimed invention for a certain period of time. In the United States, the term of a utility patent grant is 20 years from the date of filing a patent application and the term of a design patent is 14 years from the date of the design patent grant.

Of particular note, a patent does not convey to the holder the right to make, use or sell their invention. Rather it only prevents others from making, using or selling the invention. In certain circumstances a patent owner may be prevented from making, using or selling his/her invention because the invention is also covered by another patent owned by someone else.

For example, let’s assume you invented a pencil with an eraser on it, and no one else had ever put an eraser on top of a pencil. You apply for and receive a patent. Now, nobody can make your pencil with an eraser without your OK. But let’s also assume the pencil was invented a few years before and another inventor owns the patent on the pencil. Your pencil has all the features of the other inventor’s pencil except you have added the eraser. Unfortunately, your pencil reads on his patent and you must get permission from him before you can make your pencil. In the real world of business, you would probably approach the other inventor and reach some sort of agreement so that you can have your pencil produced and sold. Perhaps, you would have to license his pencil patent and give him a percentage of the revenues generated from the sale of your pencil with an eraser.

In reality, more often than not, no one else will hold a patent that prevents you from producing your invention, but the prudent inventor is wise to have his/her patent attorney review the patent references identified in a patent search to not only determine whether your invention is patentable, but also whether your invention will likely infringe another’s patent if it is made, used or sold. While both patent attorneys and patent agents can legally provide advice on whether a particular patent is patentable, only attorneys, preferably patent attorneys, can provide advice about whether your invention might infringe another patent. Stay tuned to this series for more about the distinctions between patent agents and patent attorneys.

Till next time.....

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

Denver Colorado Patent Attorney Answers FAQs: Part 2

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

Question: What are the chances that I will make money from my invention?

We have absolutely no idea! Your invention could be incredibly valuable to the particular market segment to which it pertains or it could be a dud. You are in a better position to evaluate that than us. Sometimes timing and luck play a significant role in bringing an invention to market. And then of course there is your commitment to the invention. Are you willing to spend the time required to promote your invention? Are you willing to spend the money necessary to pursue your invention to its logical conclusion?

One thing is very certain; your chances of success are lowest if you do not protect your invention with a well-drafted patent. In fact, your chances at licensing your invention without a patent are essentially zero (of course, there are always rare exceptions). The decision to patent your invention should not be entered into lightly, but if you are willing to devote the time, the money, the energy and the perseverance necessary to pursue your invention, the rewards can be huge, and not just in terms of money but in terms of accomplishment.

One of our attorneys (Kurt Leyendecker) invented a product, formed a company to produce and market that product, and lived through the failure of the company. However, he does not regret having taken the chance. In fact despite the outcome, he claims to learned so much from the experience that it has made him a better businessperson and lawyer today. He feels his entrepreneurial experiences allows him to better assist the Firm’s clients in their ventures.

In our opinion, the two most important factors to the success of an invention are (1) a novel and good idea for an innovative product or process, and (2) a high degree of commitment by the inventor. Everything else pales in comparison. And we would even be so bold as to say a very high level of commitment can even turn an idea that perhaps isn’t so great into a successful product or process. So if you have the will, the desire and the fortitude to see the process of bringing a new product to market through, than your ultimate chances of success increase significantly. The actual invention of a new or improved product or process plays a very small part in a product’s ultimate success.

Obtaining a patent for your invention also plays a crucial part in the process of bringing your invention to market, especially if your goal is to license it to others. Most large corporations will not even look at your invention unless you have at least applied for a patent.

If you are going to produce and market your invention, a patent is not an absolute necessity. However, if your product is successful, watch out because a well-heeled competitor may copy your product and cannibalize your market share, and there will be nothing you can do about it.

To summarize, you are the key to the success of your invention. If you have a good idea along with the will and the persistence to pursue your invention, your chances of success, although not guaranteed are much improved over the typical independent inventor. Obtaining a patent for your invention is your price of admission and the first step on the road to success.

See my previous post for the answer to the first question: Who can I tell about my idea/invention, and what precautions should I take?

Bookmark this Blog or better yet sign up for either an RSS or email feed (both at the right) to receive all the posts in this series. Next up: What is a Patent? Also, we have another set of FAQ posts running concerning Trademarks. You may want to check those out as well.

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

Updated InventHelp Success Numbers

This is direct from the InventHelp Website:

"From 2004-2006, we signed Submission Agreements with 6,269 clients. As a result of our services, 108 clients have received license agreements for their products, and 15 clients have received more money than they paid us for these services."

See http://www.inventhelp.com/inventhelp-client-invention-stories.asp.

Not much different from the numbers reported for 2003-2005 in my previous blog post that you can read HERE (second article).

To restate Invent Helps numbers:

Only 1 in every about every 418 clients actually made more money from their inventions than they spent with InventHelp: a whopping 0.24%.

Draw you own conclusions...

Denver, Colorado Patent Attorney Answers FAQs: Part 1 in a series

FOR ANSWERS TO MORE QUESTIONS CLICK TO VISIT: OUR WEB SITE

We are in the process of redesigning our web site to add more content and make it more useful to potential clients. We have beefed up the patent section and added a substantial amount of new content to the business, trademark, copyright and other sections. The new site will truly be one of the most comprehensive law firm sites on the web. We are very excited about its launch in the next month or so.

Anyhow, we thought we would make some of the FAQs that will appear on the website available now on the Blog in several new blog series. This is the first installment in the Patent series. Enjoy, and please leave comments or follow up questions,

1. Who can I tell about my idea/invention, and what precautions should I take?

Loose lips sink ships. Or applied to inventions, disclose and lose your patent rights! OK, not immediately, BUT if you do not get a patent application on file within one year of a public disclosure or offer for sale, you have just dedicated your invention to the public meaning anyone can make it, anyone can sell it and anyone can use it and you cant stop them. This one year grace period applies only to the United States and select few other countries. In most other countries, you lose the right to patent the invention the minute you make a public disclosure. Luckily, the filing of a U.S. application will preserve your right to foreign file for one year provided the filing is made before a public disclosure or offer for sale.

Accordingly, it behooves an inventor to avoid making a public disclosure for as long as possible. Luckily, this isn’t very difficult: have anyone you disclose the invention to sign a Non-Disclosure Agreement (or NDA). We even have one that you can use right HERE. Simply, an NDA prevents a disclosure to a third party from being a public disclosure meaning the one year clock DOES NOT start ticking and your rights to file for foreign patent protection are preserved. So if you want to talk with a machinist about making a prototype, have him sign an NDA. If you want to talk to an injection molder about the cost of producing your invention, have him sign an NDA. If you want to talk with marketing specialists about whether you invention is marketable, have them sign an NDA. If you want an engineer to help you design your invention, have him/her sign an NDA. If you want to tell your friends or co-workers about your invention to get their opinion, have them sign an NDA. Although a disclosure to close friends may not be a public disclosure, it is wise to play it safe. About the only people you do not need signed NDAs from are your family and your attorney.

Yes, you read that correctly, you can tell us about your invention and not jeopardize your patent rights. Attorneys have a legal duty to keep communications from clients and prospective clients confidential. IF we were to break such a confidence, we could lose our licenses and find ourselves on the wrong side of a legal malpractice lawsuit.

You must be careful, however even with a singed NDA, not to offer your invention or a product or service embodying your invention for sale because just like disclosing your invention to the public an offer for sale will start the one year clock ticking. In the case of an offer for sale, unlike a mere disclosure of your invention, an NDA WILL NOT prevent the one year clock from beginning to run.

In the end, you are always advised to seek legal consul before making any disclosure. The answer provided herein is simplified and cannot take into account the various particulars of your situation. Accordingly, extreme caution should be exercised before making any disclosure whether under an NDA or not. Remember to play it safe you may want to get a patent application on file prior to any public disclosure or offer for sale. We do realize, however, that this may not be practical for all inventors in all situations, SO it bears repeating, get advice from a qualified patent attorney as soon as is reasonably possible.

FOR INFORMATION REGARDING OUR FIRM CLICK HERE

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".

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.

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,

Denver Colorado Patent Lawyer

If you are looking for a patent lawyer in Denver and/or Colorado, which is to be expected if you clicked on an associated listing in a search engine, you have come to the right place. We are a intellectual property law firm specializing in patents located in Centennial within the Denver metro area. And if you are not from Denver or Colorado, no problem as we serve clients all over the country.

We are also the only patent attorneys listed on Tom Martino's troubleshooter.com referral list. When his callers have patent, copyright and trademark questions we are the firm he calls first.

For more information about us click the Home Page or Patent Services page links here or to the right.

If you are located in the Denver area or anywhere in Colorado for that matter and would like to investigate obtaining a patent or having a patent search performed, we do offer a FREE 1/2 hour consultation. And for those of you located outside of Denver, Colorado, do not despair as we offer the same consultation over the phone.

A Terrific New Resource from Google

These days it seems Google has its hands into everything on the web. In addition to the great search engine, they provide an image database, GoogleEarth with presents incredible images of the earth from above and blogger.com through which we bring you this very blog.

BUT their most recent offering is perhaps the most exciting (well, at least to inventors and patent attorneys alike). Introducting Google Patent Search. Now over seven million patents are available through the incrediblly simple and easy to use Google interface. And it is not keyword search limited like the USPTO search interface.

Try it out and tell us what you think.

American Inventor Season 1 Final Post

Well it’s all over. Congratulations to Erik Thompson, Francisco Patino, Ed Hall and the winner of the whole enchilada - Janusz Liberkowski. The host seemed to hint that there was going to be a next season. Hopefully, in the down time they will make some improvements to make it a show of more substance and potentially tap into the great learning tool the show could be for the American public. As for Janusz and the spherical safety seat we will see what happens. As previously discussed, I still have serious doubts as to whether the product will ever make it to market due to the web of government regulation and laws surrounding child safety – but I have been know to be wrong on an occasion. Maybe I will be wrong and it will be the next great American Invention.

So if you found our little blog due to your interest in American Inventor, please check out the other articles – they are packed with a lot of useful information and interesting topics. Also you can follow the links to our website where we have a ton more information on things ranging from patents, trademarks, copyrights, entertainment law and business matters. And by all means if the entrepreneurial spirit takes a hold of you – give us a call and we can help you on the legal end of things.

My Final American Inventor Post

I hate to say it but our Blog might as well be entitled the American Inventor blog. It seems that Pete and I have written about nothing else for the past two months. We have to dispense words of wisdom to our readers in our posts but nonetheless I will be glad to get back to other topics.

In some respects I feel dirty: we let ourselves be dragged into commenting on what has to be one of the worst shows on TV today: I really do not expect to to be back. Peter Jones and Simon Crowell wouldn't have even made it past the first round of "American TV Producer" if a similar show existed concerning television shows. Perhaps the problem is both of these gentlemen are not from this country and they have sorely underestimated the sophistication of the natural target audience for this show.

Instead of making a show that was both entertaining and informative they decided to pander to the low common denominators: emotion and poverty. What does it matter how good the inventor feels his/her invention is or the financial difficulties that the inventor has suffered. For one to be named the American Inventor, the quality of the invention is all that matters.

We have talked to two American Inventors as chronicled here. I will tell you that the show does not do them justice. They are much more complex, savvy and intelligent then the show makes them out to be. They actually told the contestants to play up their poor financial situations. At least one we know of was not comfortable doing so.

Anyhow, tonight is the finale and I like all four finalists. Truly the show does them a disservice. Anyhow, may the best man win!

American Inventor Heard From Again !

Lo and behold I arrived to my office yesterday morning and had a message from American Inventor Eric Thompson – the inventor of the receivers vest. From the beginning I thought he has a great combination of the inventor spirit and pure passion and confidence that it takes to win the competition.

Anyway, he was calling to encourage people to vote for him on thursday and to offer to talk about his experience thus far on the show. We were able to connect later in the day Monday and were able to speak Erik for a few minutes about his experience so far with the show and what's going on with him in general.

One of the most interesting aspects of the conversation was how much of a business sense that Erik has about him as well as a keen awareness of the other issues out there surrounding inventors and bringing a product to market. As with our discussions with Mark Martinez, it was apparent that the ABC show doesn’t really start to scratch the surface as to the real qualifications and personalities of the featured inventors. I learned that Erik has actually invented at least eight other products prior to the receivers training vest. As with Mark Martinez, the exposure has apparently been good and Erik is receiving a lot of interest in his other products. Additionally, the conversation seemed to support our theory that ABC doesn’t seem to be doing much in the way of patent searching to screen out the candidates. While, as we have previously discussed on the blog, you don’t need a patent to make and sell a product in certain circumstances, such as the case of an individual inventor, they certainly can be a valuable asset. However, with the name recognition of American Inventor and the supposed resources they will be throwing at the chosen product, they could probably do a successful first to market strategy - we'll have to stay tuned to see how it goes. More than likely, the scenario that could actually play a factor in the American Inventor contest is whether or not the product actually infringes on a patent that already exists. Erik seemed to have a good grasp of the different aspects of patenting and while he said that the decision as to whether the receiver’s vest will ultimately be patented us unknown (as is up to the show), he personally takes a strategic view and often chooses for a first to market strategy. I definitely think that the First to Market vs. Patent debate would have been a very beneficial topic for ABC to have at least minimally addressed and the pro’s and con’s of each.

The other interesting aspect seemed to be that the producers of the show are keeping the contestants in the dark about what is going on. At the time we spoke Erik had no idea what was going to happen on Thursday’s final episode. An interesting aspect of our conversation was the actual camaraderie that seemed to exist between the contestants. Erik mentioned that he really got along with Mark Martinez and Sheryl McDonald and the other people in his “team” as the shows producers called them. It was only later that the contestants found out that they were actually competing with their “team mates”.

Anyway, it was a pleasure to talk to Erik and we wish him the best of luck. He has setup a website for fan registration and a personal video message. As for any of the other contestants on the show - feel free to give us a call and we would be more than happy to discuss your experience.

How A Product That Could Win American Inventor Could Possibly Never Make It To Market.

Kurt and I were talking the other day about the American Inventor series and how we had hoped that it was going to a bit more of a “how to” or a bit more educational for inventors or at minimum illustrate the types of issues inventors should be looking at when bringing their inventions to market. The reality is that getting a working prototype is merely the beginning – there are issues of intellectual property rights (most likely patent, and trademark), there are market and pricing issues and there are other challenges such as government and/or other sanctioning body regulation. The last issue is the one that I think ultimately dooms one of the final 4 contestants and is a point that has not been brought up on the show.

If you have watched the show, you undoubtedly are familiar with Janusz Liberkowski. His invention is the Spherical Child Safety seat and was inspired by the tragic death of his daughter some 7 years ago. The invention is a personal favorite of Kurt’s and I personally think its pretty cool too – the physics behind it make sense. However, even if he wins, I do not believe that the product will ever make it to market. Why, you may ask? Quite simply it comes down to government regulation.

Automobiles safety systems and child systems in particular are regulated by a huge body of federal and state regulations. 49 CFR 571 governs child safety seats and every state has its own laws concerning the placement and use of child safety seats. The one that jumped out at me first is that the car seat positions the infant in a forward facing manner. If we take Colorado as an example, the use of child safety seats is governed by CRS 42-4-236, which states in part “if a child is less than 1 year and weighs less than 20 pounds, the child shall be properly restrained in a rear facing child restraint system.” The issue here is that Janusz’s car seat has the infant facing forward. Additionally, all of the tests that they conducted concerning the safety of the seat were conducted with the infant facing forward. I assume that the laws of the other 49 states mirror the same conventional wisdom. Mr. Janusz is in the situation that his design, while it may actually be safer than the other products on the market may actually be illegal to sell and use because the states have all codified their own laws requiring an infant to be rear facing. Therefore, he is not only going to have to persuade the public to change their views on child safety, but his is most likely going to have to change 50 state laws and potentially federal government regulations for his product to go to market and be legally used by consumers.

This situation reminded me of a popular science article I read a while back. I was able to find the article from 2002 concerning a radical new style of car seat that was designed to work in the front seat of a car equipped with air bags. The seat was designed by Xportation Safety Concepts, Inc., which also happened to be a Colorado corporation. The company’s rationale was that studies had shown that locating the infant seat in the back seat was distracting to drivers, which may actually increase the risk of an accident. Therefore, they designed a rear facing car seat that will actually work with airbags. Immediately, the product received both support and opposition concerning the concept. Some of the people who didn’t want the laws and regulations changed stated that we have been telling people that kids need to go into the back seat for so long that they didn’t now want to make exceptions to that and possibly send a “mixed message”. This shows the resistance in this area to new or revolutionary product ideas or designs. Xportation petitioned the Department of Transportation to amend the air bag warning requirements, however the National Highway Traffic Safety Administration, denied the request. Sadly it seems from the brief amount of research I did, that Xportation has faded into the sunset. Their Colorado corporate filing have lapsed, their web site is gone and I could not find a reference to them on the web any later than 2003. If anybody knows anything else about the company please let me know and I will update the article. Regardless, it is an illustration of how an invention could be revolutionary and potentially beneficial to society, but it never sees the light of day due to a variety of reasons – government red tape being one of them.

If Mr. Janusz does win the competition, he will either need to change the invention to meet current laws and safety standards, if that is even possible, or embark on a nation-wide crusade to change federal law and the laws of all 50 states. Given his deep personal commitment to the design, he may view it as the perfect way to spend his $1 million in royalties. The question is whether the show is willing to wait potentially years to go to market with the product. Only time will tell as to whether his car seat saves the world or is reduced to the long list of other products killed by the bureaucratic machine.

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.

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.

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.

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.