Terrors of the Patent Office [ Halloween Patents]

Nothing gets the inventive process moving like a commercial holiday. Unlike Christmas, Halloween lacks a committed religious lobby arguing that the festival has become too commercialized. Gaelic Druids, engaging in their Samhain Festivities, would probably be in awe of the variety and sophistication of modern creepy faced gourd lanterns. (a particularly creepy turnip Samhain lantern seen at left)

A quick search of the patent office provides several excellent updates of this apparently ancient tradition of making disturbing faces on otherwise inedible tubers. (Yes, I find turnips inedible...)

Everyone likes a menacingly happy Jack-O-Lantern. That's why, in 1907,  JC Tyndall of  St. Louis decided to file and get a patent (No. 848,938 on a "Toy Lantern"). Tyndall realized that the weak point of any Pumpkin light was the cap, and the susceptibility of the entire enterprise ending in a pumpkin scented conflagration. therefore, his pumpkin lantern includes a candle retainer, and an interlocking cap and gimbals mechanism for easy transport. the Specification does not detail why the eyebrows are so disturbingly curved.

In the continued vein of creepy faced pumpkin products, we move onto B. Wilmsen's particularly threatening Jack-O-Lantern patent issued in 1934. (No. 94,935 on a "Pumpkin Lantern").Tyndall had actually technology. Wilmsen make up for his lack of technical sophistication in this design patent with existential pumpkin-faced dread. His products nearly vertical optical orbs scream "infringe me if you dare!"

Lastly, we have an epileptic seizure inducing pumpkin Lantern. The psychedelic 1960's produced some interesting and mind altering experiences.  None of these hold an electronic candle to a double faced Janus-like Pumpkin invented by R.R. Authier of Oaks Bluff Mass and issued as Pat. No. 3,250,910. (Ed: Martha's vineyards for those who don't know).This specialty lantern has dual faces, one scary and one comical. In addition, it contains selectively operated light sources of differing colors. Lastly, these lights can blink or strobe, producing the red flashing eyes of a haunted monstrosity, in pumpkin form.


Always remember to check the patent office for particularly excellent holiday ideas.

Scammers Part 3 "Astro Boy" edition

Reporting on scams has become something of a tradition around here. In order to pull off a good con, the scam artist needs to know something about the psychology of its mark.

 It does the con-artist no good to offer to split a giant pile of bacon with a vegan (however delicious that concepts sounds). 
So to, do IP scammers know their audience. 

While not a new scam, the following letter was recently received in our offices: 

From: Osamu Tezuka Makoto [mailto:osatemakoto@gmail.com]

Sent: July 30, 2013 1:11 PM

To: Firm

Subject: Legal Rep

Dear Attorney,

We are a media publishing company in Japan. We have a breach of intellectual property agreement matter in your jurisdiction, we can forward you the agreement and 5195842743_2305>

Yours Sincerely,

Osamu Tezuka Makoto

Tezuka Production Company

4-32-11, Takadanobaba

Shinjuku-ku, Tokyo 169-075

Japan

Tel: +81333716411

Email: osatemakoto@gmail.com

http://tezukaosamu.net/jp

After some further digging the "client" told us that :

"We are  the owner of rights in a collection of animated characters including Astro Boy.  Springer Publishing of New York City failed to make a required payment upon termination of an intellectual property agreement between the us ."  

On its face, it seams like a golden opportunity  You, sitting in your office, business development book out to the "how to attract clients" chapter, gets this e-mail. You think, "sweet!" all that networking is paying off. Not only with new clients, but internationally famous IP clients. You do some due diligence, both the company, the IP and the opposing party seem legit.  Or do they. Why would a production company trading in a famous brand like Astro Boy communicate with a gmail address. Why would they contact you out of the blue, with no preface or introduction. Why call you "attorney"? 

The details of how this scam plays out differ from mark to mark, but the concept is pretty simple. Tezuka and Sterling (even though these are real valid companies) are setups, honey pots. You are supposed to Google them, see they are real, and rub your hands together in expectation of easy and significant billings. 

In reality, the contact info above, and the contact info they give you for the point of contact at "Sterling" are to the same entity. Once you negotiate a settlement, with a hefty retainer for your trouble, the money gets transferred to your firms' bank-account by a very slow validating banking institution. 

Because the client and the opposing counsel are the same entity, they know when the "money" was transferred  You, the successful hard litigating, hard negotiating lawyer, soon gets a call from the grateful client asking you to forward the money, minus your fees, of course. 

Now, some attorneys will wait until the check has fully cleared before sending on the money. Some will resist, until the client mentions that there are other people who owe them money, and they would like to retain you for future matters.  Either way, some lawyers will send a check, secure in the knowledge that the money in is the bank. 

The problem is, that the money isn't in the bank.  That slow moving bank transfer suddenly shows up as a cancelled check. Now the firm is out some hundreds of thousands of dollars. When you call Sterling and Tezuka, neither of them have ever heard of you. They have their own lawyers, who are you? You have to go to the Executive Committee and explain why you gave away the farm for some magic beans.  

You, my friend, have been scammed. Something for nothing is usually that...

Columbus Day Inventions - App Inspiration

In my continuing quest to prove that Patent law is not simply a mechanism for destroying the aspirations of having a "Social Network" style movie made about your life, I decided to put together a bunch of Columbus Day themed Patents.

While you can look at these patents and see the clanking mechanical devices of a century past, I prefer to see them as a rich vein of design and functionality that can be easily ported to a App for fun and profit. 

Humm...maybe I should patent turning mechanical patents into Software Patents... 

If you get tired of looking at awesome patents from the last century, a magical time of steam and whatnot, feel free to read the 8 page take down of the IP profession in today's New York Times.

Each of these patents would work well as an App or a graphic novel, cum spoken word performance piece. Either way, the prior art is well documented and at least 100 years old.  Just because some jerk calls you up and threatens you with infringement based on a flimsy patent does not mean that all patents were / are bad.

Columbus Day Patents: 

(All of these devices work better in their original, century old form, than Apple Maps)

For All you Brooklyn-ites, Fixie rider, Kickstarting metal workers out there, I present Brooklyn Native Raymond Finkelson's level attachment compass for bicycles. 

Designed to let bicyclists of the early 20th century know their direction, and grade, this bit of vintage Brooklyn Tech can easily be made and adapted to the wider, flashier Iphone 5. Christopher Columbus would have loved to have a bicycle and a Fixie at that. Only the truest of hipsters could rock pants that skinny. 

Above - A instrument for taking Nautical Observations. US Patent 11,475 (found here). Lots of Iphone 5 Potential here. A bit of graphical and computing horsepower lets you tilt a 3d representation of the Earth for all your nautical observational needs. Columbus would have given several shinny beads to the natives who hooked him up with this sweet app, and small pox. 

Above - Graphic Solar Instrument. Remake this into a Grid-based Helvetian typeface, you are set. Patent found here. Nothing impresses the locals like telling them exactly when Sun will be eaten by Mountain. Also it is helpful when you need to know when happy hour starts.   

Jgarner@leasonellis.com 

www.leasonellis.com 

Some thoughts on "The Maw"

I have been away for a while, work at Leason Ellis (now, I think the biggest IP boutique firm between NYC and Boston) has kept me really busy.  However, I was once told that the most important time to get your ideas out is when things are going well.

Unfortunately, things are not going well for a lot of lawyers out there (IP specialists included). The causes for this are likely beyond my ability to describe, but a major factor is what I call "cost per lawyer per unit work". In the old days, law firms wouldn't compete with one another using cut rate pricing. The supply / demand curve of reputable attorneys wasn't tilted in favor of supply. Now, through the founding of dozens of new law schools, the supply metric has gone exponential. The rate of growth of lawyers does not match the rate of growth of law firms, or the general economy.  The end result is that you will have more lawyers looking for the same opportunities.

Clients, knowing this, use their leverage to bring down the cost of services.  Normally, this is just a feature of capitalism, and no one should be surprised.  However, in law firm models, forcing down the price does more than cut into a specific partner's profits.  It cuts into the firm profits. As firm profits begin to constrict, the "Rain Makers" start looking for another ship to sail (we can have a discussion on how Partners became "Armies of One" some other time). Once some of the big guns leave, the firm profits begin to contract severely. Associates, staff attorneys, paralegals all begins to fall to the budget ax. This collectively aggressive consumption of the internal human capital is a feature I call the "The Maw".

 The Maw can, and will (I have experienced it first hand) chew through the entire professional rank of a law firm without ever solving the fiscal difficulties of the Partnership. The preferred response once the Maw has begun to consume staff is to throw larger and larger supplicants into the abyss, in hopes of appeasing its hunger. This never works. All the major firms that threw virgin first year sacrifices into The Maw 3 years ago, are likely still throwing people into the Maw today.

The only way to satisfy the hunger of The Maw is to get ahead it.  This happens by reducing the cost per lawyer per unit work. The only way to do this is to lower the cost of the work billed to client. The only way to do that is to lower the price the firm pays to its members to do the work.  This doesn't always mean lower compensation for everyone. However, the fixed income that law firms provide to their professional class is not flexible.  Therefore, to be truly Maw resistant, compensation needs to be variable, for everyone. Associates should be able to ask for, and receive, a massive pay cut, instead of having the firm select between keeping one group of associates at full salary, and terminating another.
  

IP Insurance in China

Recently, I had the good fortune to participate in a series of IP and Patent Law lectures in Shenzhen, PRC.  The main topics of discussion were related to the practical application of prosecution strategies and the new changes going into effect because of the AIA. While the audience was very receptive to the practical and philosophical changes coming to American Patent law, a strain of thought kept appearing in the questions presented to the speakers. (Pictures to Follow)  

The Chinese audience seamed, relative to the usual American audience, to place a high premium on risk mitigation.  The questions related to risk were varied, but they all had a component that sought to forestall danger by unloading risk to someone else.  This usually took the form of a question about IP Insurance in the U.S.  For those unaware, IP underwriters (for a fee, natch) will supposedly cover the cost of your outrageously expensive Patent infringement litigation. The Chinese audience wanted to know the extent of IP Insurance policies and how they were implemented.  Beyond the specifics of insurance, additional questions were directed to other forms of risk mitigation and risk allocation as it applies to drafting patents and filing disclosures.  While the mechanisms of action were different, the essential question always boiled down to "How can I eliminate risk to myself, while engaging in a profitable venture?"

The answer is, you can't.  We told them as much.  My colleague explained that those firms that would foresee being sued relentlessly are already capable of handling their litigation costs.  Those who could not, likely can not afford the premium on the policy for an event that may never happen in the life of the company.  Patent litigation, as related to risk mitigation, is too statistically random to allow a proper allocation of risk premiums. Either the insurance company will go out of business due to massive 'bet the company' litigation payouts, or a number of start-ups are going to bleed capital paying premiums to insure an event that never occurs. Either way, your money is better spent elsewhere. (Like getting an opinion on infringement from a competent Patent Attorney) 

What's the takeaway for the Start-Up community.  Patent Law is complex.  Risk management is complex. Anything worth doing, that you can make money at, carries a risk component.  Worrying about the potential of being sued by a competitor is something that is a necessary part of the innovation experience.  Efficient offsetting of the risk would not result in better products and services, it would merely enable people to take financially rewarding risks without consequence to the danger (See: Wall Street, 2008-present ).  Fear of a competitor's patent should never deter your from seeking your own.  The more time and money you spend focusing on risk mitigation, the less time you have to perfect your own idea. If your investors want more assurances, you can always get an opinion from counsel.

Google V. THE WORLD

Recently Google announced that its Scholar web-based search service would begin providing access to Federal and State legal opinions. Above the Law correctly notes that this could be the opening shot of a war that ends with the destruction of the Lex-West-Bloom legal search gatekeepers. While Google is a force to be reckoned with in everything from browsers, search engines (and patent search too), operating systems, phone services, e-mail, word processing and a ton of other things, I am not sure that Scholar will cause the total collapse of the big three.....today.

Using Scholar, I searched for Graham v. John Deere Co. to see what sort of results the service provided. Google gives you two options, to read the case (with highlighted keywords, that were part of your search) and to see how the case was cited. This second option is where Google has a bit more work to do. One of the essential features of the big 3 is the key cite, shepherdize, precedence identifies that let you know if you are barking up the wrong (and no longer good) legal tree. Scholar gives dozens of links and text snippets showing where the originating document was cited in subsequent documents, but does not comment on whether or not there was agreement, comment or dissent. Most importantly, it does not tell you if the case is good law.

Until Google gets the ability to show precedence and some legal analysis about the context of the case, I don't think any small law practitioners should be canceling their Lexis / West accounts anytime soon. However, this is Google, so assuming that they are not already working on a smooth integrated solution to this would be folly. Google database engineers are some of the best computer scientist that money can buy, and it would be prudent to bet that world of legal search is about to get a lot more competitive.

[GA]