Posts Tagged ‘mark r. malek’

Trying to Make Sense Out of the Copyright Abolitionists

Friday, 13 July, 2012 13:48 Written by Mark Malek 12 Comments
Share via email

By: Mark R. Malek

As you know, I have been in somewhat of a debate with some folks on Twitter.com regarding copyright protection.  See my previous article for more information.  Today it all kind of became clear to me.  The copyright abolitionist does not have any problem with copyright law.  Instead, the copyright abolitionist has a problem with anyone but the author of the original work actually making money on the copyright.

This became evident when the copyright abolitionist that I have been debating with indicated to me that he planned on writing a novel.  I kept calling it a “book” which apparently was inaccurate.  I was informed that he was not writing a book, but instead was writing a novel.  Personally, this is just semantics.  He indicated to me that a book is just a bunch of bound pages…whatever.  Since I heard that he was creating an original work, I decided to take his point of view and told him that as soon as it was available anywhere, I intended on photocopying it and selling it myself for a profit.

Copying a book is so easy, even a monkey can do it.

After all, the view of the copyright abolitionist does not provide a mechanism for preventing me from committing such an act.  So raise your hands if you think I actually talked any sense into my adversary.  I don’t see any hands up.  Of course not.  I was then informed that he intends on selling the first copy of the novel for $100,000.  After that, he does not care who copies it and for what price.

Anyone ready to come back to reality? Pardon the language, but who in the hell would pay $100,000 a book?  Yes, I called it a book.  I understand if it is some sort of rare book that is clearly not a reproduction, i.e, the bible that Abraham Lincoln swore the presidential oath on, or something along those lines.  That’s not even close to what we are talking about here.  In this case, what my adversary misses is that the value in this book will be in the exclusive right to use it and/or profit from it.  Copyright allows the owner such exclusive rights.

Without copyrights, there is no enforceable rights that the holder of the original work has.  Unless there is some sort of market that provides for ridiculous prices for the ranting of a mad man on Twitter that puts his words onto paper, then there is no way that the book could possibly be worth $100k.  Instead, if he was selling the original work along with the right for the purchaser to exploit the work as he/she deemed fit, then perhaps there would be a market because the purchaser could have the exclusive right to copy and sell the original work.  That’s the way the $100k investment could be turned into a profit.

Again, the copyright abolitionist has made my point for me.  Despite that fact, I will continue to listen to their ridiculous arguments on Twitter and laugh about them as copyrights will continue to be the only way to protect original works of authorship.  Before you go commenting against this article, understand that I am not taking the position that copyright reform is not in order.  I am merely taking the position that copyright abolition is not feasible or realistic.

Please Stop Equating Patents to Monopolies!!

Friday, 01 June, 2012 19:36 Written by Mark Malek 0 Comments
Share via email

By: Mark R. Malek

Ever since I started practicing patent law, one of the things that has continuously driven me nuts is when I hear people calling a patent a “monopoly” on a particular area of technology.  I’ll get into more detail below, but in essence, that is just not true.  This is one of the biggest mischaracterizations of patent law for a number of reasons.

First and foremost, the patent right does not provide someone with the right to make something, use something or sell something.  Close, but not exactly right.  All you have to do is ask yourself the following:  do I need a patent to produce something?  The answer here is a resounding NO.  The patent right provides the patent owner with the right to exclude others from making, using, selling, or offering to sell a product, process, etc. that is covered by the claims of the patent.  This is a very small distinction, but I always go back to the example that my professor in law school provided (many of you know this professor – Gene Quinn, founder of IPWatchdog.com and the partner in charge of our DC Office.  Incidentally, Gene Quinn posted a great article about this a couple of years ago). The example was “you can get a patent on a nuclear bomb – do you think that the government will ever let you make it?  Of course not.”

So here is that the patent right only gives you the right to exclude others from using your invention, it does not give you the right to make the invention.  I do understand some of the other arguments that support the fact that patents can be “monopoly like.”  In its purest form, a patent can act as a barrier to entry into the market.  In other words, the patent holder can bar others from entering the market, but to be fair, that barrier only encompasses the very specific space to which the claims of the patent are directed.  Due to the inventive nature of society, a great deal of people and companies are continuously improving technology.  That means that known technology is getting better every day.

Let’s take the cell phone, for example.  How far have we come in 15 or 20 years?  Do you remember the bag phones, or the phones that were like gigantic bricks (bringing back memories of Miami Vice, right?).  Now, due to the rapid advances in technology, I am able to achieve so much with my iPhone.  I could, if I have a ton of patience, even post this article from my iPhone.  Those of you who know me, however, know that such patience waived bye-bye to me years ago!

The point here is that it is not as though one company advanced the cell phone.  It is not as though there is only one cell phone manufacturer.  Why is that?  It is because the patent system does not really allow for a patent as broad as a cell phone to issue.  Claims are limited to very specific portions or programs or components of a cell phone.  Therefore, there is no “monopoly” on a cell phone, but there certainly is a monopoly like feeling to an Apple iPhone because Apple has several patents that protect the various features of the iPhone.  The answer to this is any phone that operates on the Android platform.

I guess what I am trying to say is that I do not believe that the term “monopoly” is accurate to use when discussing inventions that are protected by patent rights.  I really would welcome an open discussion on this.  I know that there are intellectual property haters out there that thing that patents and copyrights only serve to restrict the markets, and I will post more on that in future articles.  In the mean time, please feel free to share your opinion on this topic.

The Options For A Patentable Invention That Infringes A Patent

Friday, 18 May, 2012 06:45 Written by Mark Malek 2 Comments
Share via email

By: Mark R. Malek

Sorry for the lack of articles on TacticalIP regarding basic IP rights, but duty called.  I’m going to get back to the series of articles directed to some of the nuances of patent law.  You may recall in my previous article on this situation I indicated that one option might be to enter into a mutually beneficial licensing agreement, or even a cross licensing agreement.

A licensing agreement (I am going to focus on patent licensing agreements for the sake of this article, but you should understand that it is possible to license any intellectual property) is one in where the patent holder grants the licensee (he/she who is the beneficiary of the licensing agreement) the right to make, use, sell, or offer to sell the invention covered by the claims of the patent.  I’ll get into details of licensing agreements in another article but, in short, there is normally some sort of fee for the right to use the patent.  These can be paid up licenses, i.e., the entire fee for the right to sue the patent is paid up front and the license is granted for a certain period of time.  License fees can be paid per use, or as a percentage of sales, or any number of combinations.

Another option is cross licensing.  This is when you and the patent holder license each other the rights to use one another’s patents.  Why would you want to do this?  Perhaps this is your best option.  The reason why the patent holder is interested in your patent is because it is likely an improvement of the original.  We all know that continued success in business does not come with one product.  Sure, there are some one product wonders, but what happens to those companies that do not do anything else, or try to update their products?  They are here today, gone tomorrow.  A couple of examples off the top of my head – beanie babies and silly bands.  Being a father of young children, I have seen these come and go…quickly.

In the case of cross licensing, the original patent holder sees value in what you are doing and is hoping to improve their product line by being able to offer a product that is improved.  You may not want to be creating competition, but sometimes it may be your only option.  There are ways to work such agreements so that everyone wins.  For example, you can insert terms that you agree to a minimum retail price of the product (which prevents one party from drastically undercutting the price of the other party).  You can also set up territories, or include a number of different terms to make sure that the cross-licensing agreement works more like a partnership.

My next series of articles will deal with some mischaracterizations of patent protection, and a discussion about how patents are NOT monopolies!

Zies Widerman & Malek Supports The Scott Center for Autism Treatment

Friday, 13 April, 2012 05:00 Written by Mark Malek 0 Comments
Share via email

By: Mark R. Malek

I know this is a departure from the typical posts on intellectual property that I normally do, but I wanted to take some time out to urge our readers to join our firm in supporting The Scott Center for Autism Treatment at Florida Institute of Technology.  ZWM is very proud to support many organizations.  Please take a minute to check out our community page to find out more information about the various organizations that we proudly support.

This year, I am honored to be the chairman of the committee planning the annual fundraiser for The Scott Center – The Evening of Hope IV. The event will be held on April 21, 2012 at the home of one of the Trustees of Florida Tech, Joe Flammio.  I really want to thank Mr. Flammio for his generosity to The Scott Center.  Sponsorships are still available, and can be purchased here.

As a special treat this year, The Kempf family, owners of Kempf’s Jewelers in Indialantic have again donated a Rolex watch to be raffled off  for the benefit of The Scott Center.  Tickets are only $25 a piece and can be purchased here.  The drawing for the Rolex watch will be held at Kempf’s Jewers on April 28.

The Scott Center for Autism Treatment has a three pronged mission – Service, Training & Research.  The three pronged approach of The Scott Center provides families and persons suffering with Autism with the treatment that they need,  training for future therapists, and research of new Autism treatments.  I am lucky enough to live in this wonderful community that provides such great resources to families that deal with Autism.  I thank all the members of our committee, and I look forward to a wonderful event.  Please join me in supporting the fight against Autism.

 

Does My Patent Infringe On Another Patent?

Friday, 06 April, 2012 05:45 Written by Mark Malek 2 Comments
Share via email

By: Mark R. Malek

My last article discussed the possibility of obtaining a patent, but that the patent may still infringe on the claims of an existing patent.  Yes, this is a rare situation, but one that is possible nonetheless.

The scenario that was laid out in the last article indicated that you have invented a chair with five legs.  The clear advantage is that this chair is much more stable than the typical chair that you normally sit on with four legs.  You have now filed a patent application on your chair with five legs.  During the examination, the Examiner has cited a chair with four legs as prior art.  Although the Examiner allows your patent, the Examiner indicates in the “reasons for allowance” that none of the cited prior art discloses the advantageous fifth leg and, therefore, the claims in your patent application define over the cited prior art.

Fantastic – you now have a patent.  You now also start manufacturing and selling your chair with five legs.  All of a sudden, you one day receive a letter from the owner of the patent on the chair with four legs.  The patent owner is accusing you of infringing on the claims of the patent, and instructs you to cease & desist from further infringement.  The letter explains that your chair, although it has five legs, still infringes on the claims of the patent.  It goes on to specifically indicate that your chair has four legs, and other stuff, i.e., a fifth leg.

Now you must engage in an investigation to make sure that the claims of the letter are founded.  You probably go to your favorite website on intellectual property, Tactical IP, or even your other favorite website on intellectual property, LegalTeamUSA, you will read one of my articles about what it takes to infringe a patent.  In the above article, it was noted that in order to infringe a patent, you must meet the claim limitations of at least one of the claims.  In other words, your invention has to include all of the elements of at least one of the claims in the patent.  You quickly figure out that your chair with five legs does meet the claim limitations.  Now what?

Now you engage in some sort of settlement negotiation that will hopefully end in a mutually beneficial license for you to continue manufacturing and selling your very lucrative chair with five legs.  You also do some investigation into the success of the patent on the chair with four legs.  Perhaps there is a cross licensing opportunity here.  I will discuss cross licensing in another post.  In short, cross licensing is where you grant a license to the owner of the patent on the chair with four legs a license to your patent so that the four leg chair patent owner can make chairs with five legs, and the four leg chair patent owner grants you a license so that you can continue to manufacture and sell your five leg chair patent.  Much of this is also laid out in my article about the various ways to make money from your invention.

Now you are asking how this could have been avoided.  The answer is a clearance search – also known as a freedom to operate search.  These searches are quite thorough and quite expensive.  This is a really good article on patent searches on IPWatchdog.  I will go into more detail about clearance searches in another post.  Until then, happy inventing!

« Older Entries
Newer Entries »

Subscribe

Login



WEDNESDAY, MAY 22, 2013

Bad Behavior has blocked 13385 access attempts in the last 7 days.