Video Transcript
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hi there it’s Gary Schuster your friendly neighborhood inventor and welcome to Innovation Cafe today we’re going to have a little bit of a hard talk and by heart I mean lawyers make everything complicated so I’m going to go over some definitions that will help you understand your lawyer and help you understand what you read about intellectual property and in particular intellectual property law this isn’t legal advice but you probably need this information to understand the legal advice your here is going to give you I’m going to break this up into IP which is this video and separate ones for patents copyright trademark Trade Secrets I’ll create playlists you can watch them all at once if you want um maybe get a meal if you’re going to do that because there are a lot of definitions lawyers have certainly complicated intellectual property law let’s turn to what you need to know about IP and IP terminology first of all IP stands for intellectual property that’s not surprising and it’s kind of straightforward it is a legal construct that gives
creators exclusive rights to their inventions to their writings to their Creations to their designs the way to understand intellectual property is that it’s kind of property and kind of not imagine if you were to come over here and take my favorite gorilla mug would I still have that mug no of course not you would have taken it and I would have been deprived of it and you know there’s statutes on the books prohibiting theft theft and you know there’s civil claims too you really just can’t steal someone’s stuff but what if I had a picture of this mug and you got onto my phone copied the picture sent it to yourself would I still have the picture oh yeah I have been deprived of nothing to get people to continue to create inventions art books all the good stuff that we love we have to do something to protect their rights in their Creations otherwise there is less of an incentive to create I say less of an incentive because there are some fantastic open-
Source projects like Linux for example that were created in a way where the creators didn’t profit from it other than I guess reputationally but for the most part you’re not going to find drug companies spending a billion dollars to develop a drug and then just going yeah you know public use it’s all cool there does need to be a way to protect intellectual property what does intellectual property consist of intellectual property includes patents and there are three main kinds there are plant patents which you probably are not going to run into much in your life design patents for ornamental designs and utility patents for things that have function these are called by different names in other countries but it’s the same concept for the most part next up trademarks trademarks are basically a designation of where the goods or services originated so if you see a can on the shelf and it’s got the Coca-Cola Cola logo it should originate with Coca-Cola and if someone is using that logo without permission they’re violating the trademark there are registered trademarks and non-registered
trademarks and we’ll get into those another form of intellectual property is copyright copyright is exactly what it sounds it gives you the right to control who makes copies of your works and there are Trade Secrets trade secrets are both old and new in the US on a state level there have been trade secret laws for a very long time but the feds only passed the defend Trade Secrets act recently it may still be an area of developing law on the federal level but basically trade secrets are the kind of thing that would give your competitor an unfair Advantage if they stole from you or that would harm you if it was stolen from you whether you’re an inventor with some groundbreaking product or just a product that people are going to be happy to buy whether you’re an artist with a new painting a company with valuable business information IP law ensures that you have control over how your work is used how it’s shared how it’s sold protecting IP really is pretty critical for fostering Innovation and creativity that’s why it is actually in the US
Constitution what are some important terms that apply to all intellectual property probably the biggest one that you’re going to hear about is infringement now infringement means using something illegally essentially without permission if I use a patented method to manufacture medication and I don’t have permission that’s infringement if I were to copy an album by your favorite artist and just not pay for it that’s infringement if I were to label all of my knockoff sodas with the Coca-Cola label that’s infringement infringement is a synonym for I took your intellectual property I didn’t pay you for it now I’m using it now another thing to know though about infringement is you don’t even have to be the one to do it to have some liability for it encouraging someone else to infringe can be contributory infringement typically for federally controlled rights like patents copyrights registered trademarks the way you enforce it is you go to federal district court and you sue someone that’s the normal route but what we’ve learned in the past few years is that when you have vendors who are
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essentially monopolistic and I’m not accusing Amazon of being a monopoly because they’re obviously competitors but they control so much of the market that if you were to knock a product off of Amazon it would severely harm the manufacturer of that product Amazon has a brand Protection Program so if I put up a knockoff of something on Amazon they’ll take it down as long as the owner of the relevant intellectual property has gone through the Hoops that Amazon requires them to go through another thing that’s really important especially for Trade Secrets but generally for intellectual property is a non-disclosure agreement or an NDA an NDA is pretty simple to understand it’s just a contract between some some parties that says we promise not to tell anyone else your secret or whatever you disclose to me or whatever it is that you’re protecting from disclosure it should be used to protect business information and things of value but it’s also sometimes used to prevent a leak of embarrassing information to prevent other people who’ve been harmed by a
company from being able to say that the company paid them in a settlement and how much uh so it has a broad set of uses but in the intellectual property context it typically shows up in every patent transaction I’ve ever done and that that’s why I can’t give details about specific transactions I have to talk in generalities it’ll show up when you’re talking about computer code which is you know subject to copyright it might also be subject to patent it’s less likely for trademarks because that’s kind of by their nature public but they’re used to keep things secret even in fact the contents of a patent applic a which is eventually going to be published to the world when the patent issues even those can be subject to a non-disclosure agreement although the non-disclosure agreement will always say once the patent is issued or the application’s published it no longer applies it should say that if it doesn’t anyhow now there are some circumstances and they’re growing where non-disclosure agreements are not permitted and it’s
kind of a moving Target because some states and the Federal Trade Commission seem really interested in limiting these kinds of agreements but in particular particular non-disclosure agreements that try to Shield settlement for wrongful practices now licensing this is where you want to end up as a Creator it’s great to get a copyright it’s great to have a patent but those things don’t arrive with checks there’s no transfer to your bank account along with the patent you have to find a way to make money off of it and one way to do it of course is to build out a product or with a copyright to make a movie out of your script another way is to license it so you’ll have an author for example of a movie script who licensed it or sells it to a movie company it’s going to produce a movie you’ll have someone who has a patent on a process or a device who may not have the resources to build it may not have the necessary infrastructure to make it happen and they might license it to a manufacturer or or just if you’re a high velocity inventor you’re going to have too many inventions to build out
yourself a company around each of them it just doesn’t happen but if you’re high velocity inventor you’re just not going to have the resources available to build a company around every one of your inventions so there will be licensing license can be split up in so many ways now there are certain ways you can abuse especially a patent Monopoly so you have to be a little careful it’s worth checking with a lawyer but essentially you can split the license make it an exclusive license so no one else can do it or have it you can make it non-exclusive so say I’m going to license to 20 different companies and they each have the right to do it you can chop it up geographically you have all the rights east of the Mississippi I have the rights west of the Mississippi it can even be limited to some uses uh as an example say I came up with a new antibiotic and I’m running a company that makes human treatments well what am I going to do with the veterinary applications I’ll license it for animal use to a company that makes Veterinary medications so you can split it up in all kinds of ways there’s a lot of flexibility in how you do licensing that
said if you approach a company in particular with a patent you want to license they’ll know at the point that you approach them that you have intellectual property and they might try to interfere with it now true story we had a patent that was really valuable this was like 20 years ago we approached a very large company that was in the business of patents and it’s probably not the one you’re thinking it is but I’m not going to tell you who it is and we came up with a suggestion of how they could use our patent to improve their licensing of a different patent the patent they were licensing expired in you a couple years and ours had like 15 years of life on it and instead of Licensing it from us they filed something called an exp party re-exam now after we’ already moved on from negotiating with this company that ended up filing the re-exam we were literally going to close on a deal the next day and the re-exam was filed the counterparty pulled out of the deal ultimately the re-exam went nowhere the patent stayed intact there were no
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modifications to the claims but the window had already closed on the deal and it ended up being an extremely costly error what should we have done we should have had a non-disclosure agreement that said and you don’t get to put us into re-exam or disclose to the patent office anything that we tell you that is not public information so those are sort of the big picture intellectual property terms I’m going to get into specifics apologies in advance the Utility Patent one is hyper technical because they have all kinds of technical terms I wish that lawyers would let us just conduct our business in English and I say this as someone who’s gone to law school and has licensed to practice law um we make it too hard for people thank you for watching and I encourage you to check out the other videos uh going to do the patent one next and then we’ll have copyrights trademarks uh coming on shortly after that from beautiful downtown Vancouver in my living room with a green screen I’m Gary Schuster and this has been innovation Cafe and I want you to remember there is no reason that you can’t invent there’s no reason
that you can’t come up with the next great screenplay there’s no reason you can’t come out with great pieces of art believe in yourself I believe in you because all humans are born able to do those things so hang in there be creative make the world a better place for yourself and others and we’ll catch you next time