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To patent or not to patent: That is the question

A patent could offer protection from poachers, but is it worth it?

By Kurt Leyendecker

Prospective clients routinely ask whether getting a patent makes sense given that she would not likely be able to afford the cost of the lawsuit necessary to enforce the patent and stop an infringer. The truth is that patent infringement litigation is expensive; attorneys’ fees alone usually exceed $1 million in a case taken through trial. Moreover, even if the patent holder prevails, there is no guarantee he will be able to recover attorney fees. In fact, under the American Rule, attorney fees awards are the exception rather than the rule. The good news is that the award of attorney fees in patent cases have become more common in recent years; nevertheless, it is still somewhat foolish for a litigant to assume she will be able to recover fees. So why bother filing for a patent on an innovation?

Read more at ColoradoBiz Magazine.

By |August 1st, 2016|BLOGGING|Comments Off on To patent or not to patent: That is the question

Protect your trade secrets or pay the price

Act now to ensure your company’s sensitive information never gets compromised.

By Kurt Leyendecker

In the world of intellectual property law, trade secrets have always been the issue that gets stacked behind patents, copyrights and trademarks. Transactional intellectual property lawyers don’t know quite what to make of trade secrets or, perhaps more precisely, don’t know how to make money off them.

Read more at ColoradoBiz Magazine.

By |June 28th, 2016|BLOGGING|Comments Off on Protect your trade secrets or pay the price

Is corporate America killing hashtags with trademarks?

Consider the case of PepsiCo and #GetNaked

By Peter Lemire

I recently read an article regarding the rise in trademark filings for hashtags. According to the article, 1,398 were filed worldwide last year; the figure for the U.S. was around 500 — a drop in the bucket among millions of trademarks filed worldwide every year.

However, the increase in the number of filings over the previous year is significant. The increase in attempts to trademark hashtags may cause one to ask: Is this a hostile takeover of social media in an attempt to chill free speech? And should my business consider trademarking hashtags?

The answers are: No, not really; and it depends.

Read more at ColoradoBiz Magazine.

By |April 27th, 2016|BLOGGING|Comments Off on Is corporate America killing hashtags with trademarks?

Why a trade secret is the Spanish Inquisition of intellectual property

Nobody expects it — until it’s too late

By Kurt Leyendecker

“Nobody expects the Spanish Inquisition!” If you’re old enough, this phrase invokes a classic Monty Python skit starring a trio of bumbling 15th century cardinals who burst onto the scene. Perhaps you’re wondering why the Spanish Inquisition is making an appearance in a column about intellectual property.

You didn’t expect this, did you?

People with at least passing familiarity with the term “intellectual property” can associate it with patents, trademarks and copyrights. But “trade secret” doesn’t often come to mind. Simply put, a trade secret is the Spanish Inquisition of intellectual property: Nobody expects it until it is too late.

Read more at ColoradoBiz Magazine.

By |March 9th, 2016|BLOGGING|Comments Off on Why a trade secret is the Spanish Inquisition of intellectual property

Who owns the trademark to “You’re fired!”?

Hint: It’s not who you think

By Peter Lemire

Since it seems Donald Trump is on everyone’s radar screen, I decided that I must write a column on “The Donald.” Before you roll your eyes and prepare to tune out another political rant, let me assure you that my focus is purely related to intellectual property and a typical tension that many celebrities, and sometimes companies, face when trying to protect catchphrases.

Think back to 2004–05, when The Apprentice first aired. Hosted by Trump, the reality TV show featured contestants from various backgrounds who competed to win a job with Trump’s organization. The contestants were split into teams and were assigned tasks designed to assess their business acumen. At the end of each episode, the loosing team would be brought into the boardroom and Trump would let one member of the team go with the catchphrase “You’re fired!”

Read more at ColoradoBiz Magazine.

By |February 8th, 2016|BLOGGING|Comments Off on Who owns the trademark to “You’re fired!”?

DIY intellectual property: Really, how hard can it be?

Well, it’s kinda like removing your own appendix

By Kurt Leyendecker

We often receive inquiries at our firm from people wondering whether they can prepare and file either a trademark application or patent application themselves without an attorney. Of course, for purely selfish reasons as an attorney, I am not thrilled about losing potential revenue, but there isn’t any legal reason or rule that prevents a person from filing their own intellectual property paperwork. I say go for it — what is the worst that can happen?

As an aside, please forgive me if my column seems a bit disjointed and my prose a bit forced. You see, I am in a lot of pain right now. I noticed my abdomen was rather sore and tender a couple of weeks ago. After a little Internet searching, I came to the conclusion that my appendix was inflamed. With my deductible and copays, I figured an appendectomy was going to cost me several thousand out of pocket. Seriously, why is surgery so expensive? I mean all the doc has to do is cut a small hole, reach in and cut the appendix off, and sew everything back together. “How hard can it be?” I thought.

Read more at ColoradoBiz Magazine.

By |November 18th, 2015|BLOGGING|Comments Off on DIY intellectual property: Really, how hard can it be?

The sweet spot: When to file for your patent

Things have changed recently

By Kurt Leyendecker

Over the years, I have written a significant amount concerning patent strategy and patent procedure aimed at entrepreneurial companies and individuals, and most of the information was available on my firm’s website.  The firm recently unveiled a new modern and streamlined website.   Much of the old content was removed with the intention of updating it and making it available as PDF white papers on our new site.  What struck me most during the updating process is how dramatically my advice has changed in light of the changes to patent law, most of which went into effect a little over two years ago as part of the America Invents Act (AIA).  Some of the procedural considerations are worth noting here.

Prior to March of 2013, the person first to invent a new invention was first in line to receive patent protection, even if another person who invented a substantially similar invention filed for patent protection first. Accordingly, I advised many of my clients to keep copious notes and fully develop the invention before filing a patent application, reducing the chance that the client would have to file a second or third application at significant additional expense because of changes made during development. Under the current first to file rules, however, whomever files first on an invention is the inventor who will receive a patent even over another later-filing inventor who came up with the idea first.  Now, I recommend an inventor get an application on file as soon as reasonably possible, even if significant and potentially substantial changes may occur during subsequent development. The failure to file quickly could be the difference between receiving a patent or not.

Read more at ColoradoBiz Magazine.

By |October 18th, 2015|BLOGGING|Comments Off on The sweet spot: When to file for your patent

Pay attention to the dancing baby

What businesses need to know before sending takedown notices

By Peter Lemire

A few weeks ago, the 9th U.S. Circuit Court of Appeals issued a decision in what has come to be known as the “Dancing Baby Case” that every business needs to know about before sending Digital Millennium Copyright Act (DMCA) takedown notices to Web hosts and other companies that host third-party content such as Facebook, YouTube, Amazon and eBay.

Although the biggest users of the DMCA are media companies and content producers, pretty much any business could find itself dealing with DMCA issues. A frequent issue in our office is competitors’ unauthorized utilization of product photographs, product videos, or logos that are protected by copyright. The DMCA has been a powerful tool for businesses to fight copyright infringement, but it is somewhat of a double-edged sword that can land companies in a host of trouble that they never expected.  While it is important to police one’s intellectual property, the dancing baby case is a good example of how knee-jerk reactions and overly aggressive enforcement can land a company in a whole host of legal trouble that it never anticipated.

Read more at ColoradoBiz Magazine.

By |September 18th, 2015|BLOGGING|Comments Off on Pay attention to the dancing baby

The rise and fall of the labradoodle

June 22, 2015

How a trademark would have made all the difference

Peter Lemire

Leyendecker & Lemire speaks to trademark issues often – with clients and within this column. In the world of intellectual property, this might seem strange. After all, patents are usually the ones in the spotlight, soaking up all of the adoration and discussion in intellectual circles. Even some intellectual property attorneys will give short shrift to trademarks and almost treat them as an afterthought – an add-on to the patent, if you will.

However, there’s good reason we spend so much time talking about trademarks: They are universal. Most businesses have them, and oftentimes they account for the vast majority of business value represented by a company’s intangible assets. Trademarks are eternal, whereas patents and copyrights have a fixed term that will eventually expire. At the end of the day, once your technology is not necessarily the newest thing, your trademark is what will differentiate your company. Additionally, trademarks can be used to great effect and commercial gain in situations where other forms of intellectual property are not available.

I recently came across an article in Psychology Today that shows not only the power of branding, but also the risks that are associated with not adequately protecting and policing your mark. The seemingly unlikely focus of this analysis is, well, a dog; specifically, a pseudo-breed that everyone knows – the labradoodle. The focus of the article is actually on the regret of Wally Conron, the creator of the labradoodle, in introducing these dogs to the world.

Labradoodles, despite what a lot of people think, are not actually a breed of dog. They are a crossbreed, or what is more commonly referred to as a mutt. So if the labradoodle is really just a mutt, then how has it earned such high stature in society, where people are willing to shell out thousands of dollars for one? One word: branding.

Read more in COBiz Magazine.

By |June 23rd, 2015|BLOGGING|Comments Off on The rise and fall of the labradoodle

It’s all in a name (or not)

Where would Amazon be if it had been called “An Online Bookstore”?

By Kurt Leyendecker

Driving into the office recently, I heard a commercial for a local small business broadcast over the radio.  A well-known local radio personality and pitchman explained the business was changing its name to one that better reflected the fact that the business offered its services for a flat fee.  I had heard this commercial probably a couple of dozen times over the previous months.  Clearly, this business was spending a lot of money on its radio campaign.

Presumably, the business sought to associate itself with the descriptive content in its new name so that potential clients and customers looking for this particular attribute would more easily find it.  I yelled at the radio, “No, bad idea!” No one heard me. Descriptive names and trademarks might boost exposure and even revenues in the short term, but in the long term, the business risks anonymity as others adopt similar names or, more likely, use a similar phrase to describe their similar services.

An example is in order, and I will use my firm as the example, rather than identify the shortsighted business.  “Leyendecker & Lemire” has been my Firm’s name since inception.  Our name, which also serves as our trademark, does not reveal anything about the services we provide.  Let’s say I convince my business partner, Pete, that we should change the name to “Colorado Flat Fee Patent and Trademark Legal Services.” To promote our new name and the fact that we provide flat fee legal services, we embark on an extensive and expensive marketing campaign.

Read more in ColoradoBiz Magazine.

By |June 2nd, 2015|BLOGGING|Comments Off on It’s all in a name (or not)