Innovation Cafe with Gary Shuster, patent litigator and prolific inventor.
Transcript
Hey there I’m Gary Shuster. Welcome to Innovation Cafe. Today I’m just going to hit a very high level description of some of the things I’ve been talking about. One of the things I learned early on in my life is it is better to explain things at a very basic level than it is to assume that people are going to understand all the nuances, that it’s taking you a lot of time to learn. So this is super high level stuff. What’s a patent? A patent is a monopoly, meaning no one else can do it. That the government grants you to practice your invention.
So you build a new, better widget. You file for a patent with the government. The government says. Yeah, you know what? This is novel. It’s not obvious. Those are the criteria for getting a patent. And they give you a monopoly. So for 20 years, from the day you file, no one else can do it for you. And if they do it, you can sue them. There are a couple kinds of patents. If you come up with an ornamental design, meaning it’s just pretty. It looks nice. It doesn’t have function. That’s a design patent. If it has function, if it has utility, it’s utility.
Patent. If you want to save some money and file your patent application on the cheap, you file a provisional patent application. But that never turns into a utility patent. You have to file an actual utility patent application within a year. You do need to know that they’re really limited to the country they’re issued in. So if I file for a patent in the United States and I have my super widget is now patented in the U.S., no one can do it but me. There is nothing stopping people from crossing the border and buying that widget in Canada.
Now taking it back into the United States, they might run into some trouble, but as a practical matter, it is unlikely that they’re going to get stopped with it. Patent protection ends at the border of the country that issued the patent. Simple. Yeah, those are pretty much patents. What is copyright? Copyright is the right to control other people’s use of the tangible expression that comes from your mind. So if you write down a note, that’s copyright. If you draw a picture that’s copyright. If you write a book that’s copyright. Now do you need to do anything to have your copyright issue.
Because we know with inventions you got to go to the patent office and file. And sometimes hire a lawyer. It’s not as much fun as it sounds, and it doesn’t sound very much fun. No, you don’t need to do anything in the United States, the copyright just arises when you create the thing. So if I just go to someone’s car and do a little drawing in the dirt on their window, believe it or not, I have a copyright in that drawing. Also, probably not cool to do because it’s just not nice. But you can get a copyright pretty much for just something you’re writing down on a cocktail napkin, and it’s valid.
Now here’s where it gets complicated. If someone else starts to copy your stuff, then to sue in the United States anyhow, I’ll have to register for your copyright. Did I say it was complicated? No. It’s super simple. You just go to the copyright website. You put in a little bit of information and boom, there’s your copyright. So copyrights are really simple and cheap, but they don’t cover things that have a function. They cover the expression of ideas. Now that’s been interpreted to cover software which does have a function. It’s there’s kind of a weird overlap between utility patents and copyright.
But again, this is a complex edge case that you don’t really need to worry about at this point. It’s enough to know if you write code that can be copyrighted. In fact, it is when you create it, you draw a picture, you write a book, you take a picture. That’s copyright. Copyright covers pretty much any tangible expression. A trademark is a government issued right to keep your customers from being confused about whether some other product that you didn’t make might be made by you. That’s all it’s supposed to do. It’s supposed to prevent consumers from being confused.
It wasn’t even created to help big companies, but it really does. Given the choice between the five most valuable patents in the world and the five most valuable trademarks, take the trademarks. And the second, by the way, those don’t ever need to expire if you do a good job with them. It is somewhat more complicated to file a trademark than it is to just register a copyright, but it’s not wildly complicated. And if you’re really down in terms of cash, you can still file it in the United States anyhow, for $250 for a single class of items.
there is one weird kind of intellectual property which is the right to control how your image is used, especially how it’s used in business or commerce. And that’s called the right of publicity. And if you have a right of publicity claim, you probably need to see a lawyer. Very difficult to boil that down to something that is simple to explain, but I’ll try. If you want to put my face on your billboard, you need my permission. If you want to put my face on a box of cereal, by the way, you should probably seek professional help if you decide to do that.
But you would need my permission too. If you’re exploiting someone’s likeness to make money, you need their permission to do it. Not true in every place in the world, but it’s true in enough places that, especially with a global presence like the internet, you want to be careful how you do it. And so I’m going to keep it short. That’s it. Patents are for things that are useful and they stop other people from doing it. The last 20 years from when you file for them, copyrights are for an expression of something from your brain. It’s for when you’re expressing a creative idea and those arise automatically.
We have trademarks. Just don’t confuse consumers as to whether your goods, which are called something the same as my goods came from you or me. We don’t get to confuse them. You get a trademark and I can stop you from confusing people. So that’s really the long and the short of IP. Simple. Quick to the point. Sorry it wasn’t more entertaining. Maybe next time I’ll do it. Wearing a costume. Thank you for watching Innovation Cafe. And remember, you have the creativity to change the world. You have the creativity to change your own life. Use it.
You were born with it. Even if you lost it along the way, it’s still there in the back of your head. And we’ll catch you next time. Thanks for Innovation Cafe.