"Patent trolls" are often thought of as a nasty group of people who extort money out of small businesses. Recently, I took part in advocating for "patent trolls" for a CLE course. Naturally, I wasn't too excited about it at first because I figured everyone was going to hate patent trolls no matter what I said. But I did a little digging to see if patent trolls did indeed deserve a bad reputation, and to figure out what I would say. And here's what I found.
I am often told, "I'd like to discuss my invention with you, but I would feel more comfortable if we signed an NDA. Can we sign an NDA before we talk about my invention?" My answer to this is, "We can, but we don't have to." Some people get really paranoid, and follow up with something like, "Ok, I will only mention a few things about my invention... It's something people use on a daily basis." As you may guess, it's really tough for me to have a meaningful conversation when I don't know much about an invention. Practically speaking, I can't talk about the patentability of the invention, or really plan how I should draft a patent application without knowing some detailed information about the invention.
Recently, I've been handling a lot of infringement matter (in regards to patents, trademarks, and copyrights... yes, all three) both on the offense and defense side, so I've been seeing a lot of cease and desist letters. What is a cease and desist letter? A cease and desist letter is a letter that is prepared by a party who has rights to a patent/trademark/copyright. The letter is sent to an alleged infringer of the patent/trademark/copyright to inform him or her of the rights holder's rights and to demand that the alleged infringer stop the infringing activities and/or pay damages.
In one of my defense cases, a client told me, "Hey, I talked to another lawyer and he told me that I should ignore this letter."
Two things wrong with that.
1. I don't know what lawyer would tell his or her client to ignore a cease and desist letter. This is something I would never advise.
2. Ignoring a little letter is one thing. But this cease and desist letter came with a draft of a complaint to be filed in a district court. Ignoring the letter would almost guarantee the complaint would be filed. And once you have a lawsuit filed against you, you are going to wish that you had responded to the letter.
I'm sure you've seen copyright symbols and various trademark symbols before. Recently, I came across a website that had at least seven copyright symbols on it. I mean, it was almost to the point where it was just ridiculous to have that many copyright symbols. And sometimes you see so-called trademarked slogans on TV like, "That's hot," "You're fired," and "That's so fetch," with a little TM symbol at the end. What's up with all these symbols and what are the proper ways to use them?
The first one we'll look at is the copyright symbol. This symbol is used to inform the public of your copyright ownership. Use of the copyright symbol was once required as a condition of copyright protection, but now it is optional. This means that even if you don't use the copyright symbol, you are still entitled to a copyright protection. But this symbol is still nice to use because it informs the public that your work is protected by copyright, it identifies the copyright owner, and it shows the year of first publication.
You can use this symbol whether or not your work is registered with the Copyright Office. The big difference is, common law copyrights do not protect authors or creators of work from subsequent copying of their work once published, but instead provide only limited protection for the first publication.
A lot of people approach me for help with preparing and filing their provisional patent application. When I ask these potential clients if they've already conducted a patent search, some of them pause and ask me, "No... I don't really want to. Do I have to?" Or sometimes people will say, "Nah... I've convinced myself that there is nothing like this out in the market."
When I get these responses, I always say, "I highly recommend a patent search. It's worth it." Do you absolutely have to conduct a patent search? No. But you have the duty to disclose any prior art that you know of. Also, do you really want to jump into patent prosecution not knowing what else is out there? I assure you, you will be feeling uneasy and so will your investors (or other people having interest in your patent) if you have any.