Sunday, April 27, 2008

How do you stop someone from stealing your bra?

Dear Rich: I have a question. I read recently that Victoria's Secret stole somebody's design for a bra. I have a design for something similar -- I don't want to say exactly what it is, because it kind of gives away the idea. How can I stop someone from stealing it? I'm so glad you asked. I'm familiar with the alleged bra theft, though I don't think it's fair to say -- at least not yet -- that Victoria's Secret violated the law. The woman claiming theft has a patent, but there are many ways to design around patents, and it's always possible to argue that the woman's patent is invalid. Alas, patent law is rife with misinformation regarding bra inventions, including the claim that Mary Phelps Jacobs invented the first bra in 1914 or that Herminie Cadolle of France invented it in 1889. (For those interested in the true story, I recommend Hoag Levins' wonderful explanation of brassiere inventions in his book American Sex Machines: The Hidden History of Sex at the U.S. Patent Office.)

Can you stop someone from stealing your idea? You can take preemptive steps -- one approach is to get a signed evaluation agreement (a modified nondisclosure agreement) before presenting your idea. The problem with that is that many big companies don't want to sign them because they're afraid it will prohibit them from developing similar ideas. Another approach is to seek patent protection. A patent -- as in this situation with Victoria's Secret-- gives the owner a hunting license to pursue infringers. If you're not sure about investing time and money in the full patent application, you can reserve your place in line at the Patent Office by filing a provisional patent application for $105. Nolo offers books and software to prepare a provisional application. And remember, whatever you've invented, please consider the safety issues.

Wednesday, April 23, 2008

Design logo searching

Dear Rich: I have a question. Last week, you talked about trademark logos. How do you search the USPTO database to find conflicting design logos? You can search design logos as follows:
  1. go to the USPTO website
  2. under Trademarks (on the left), click "Search TM Database"
  3. then click "Free Form Search (Advanced)"
  4. enter a word or words in the search box that signify what you're looking for followed by [DE] (which stands for "design element").
So, for example, if you were looking for design logos that included a meerkat (no not this meerkat) you would type: meerkat[DE]. Cute, huh?

Sunday, April 20, 2008

Harry Potter and the little guy

Dear Rich: I have a question. Why should I care about the Harry Potter case? Isn't it just another example of a huge megacorp using copyright law to crush the little guy? I'm so glad you asked. I don't know why you should care about the Harry Potter case. And I don't know why you should care enough to ask me why you should care about it. I don't even know why you should care about reading the answer to your question. What people care about and why they care about it is a mystery to me.

The Harry Potter lawsuit -- in which a publisher and author are attempting to stop publication of a Harry Potter lexicon -- is not an unusual copyright dispute. Maybe you're too young to remember when J.D. Salinger successfully stopped a biographer from using his unpublished letters, or when ex-president Ford stopped The Nation from printing excerpts from his unpublished memoir. But you must be old enough to remember when the producers of the television show Twin Peaks stopped publication of a Twin Peaks guide, or when the producers of Seinfeld stopped a company from publishing a book of trivia questions about the Seinfeld television series. (Talk about being re-gifted!) In these situations, the courts have done a pretty decent job of separating those cases in which the author is being exploited (not a fair use) from those cases in which the author is being explained (fair use).

As for using copyright law to crush the little guy, that knee-jerk characterization may apply in cases of RIAA smackdowns but misses the boat here. (If anything, the little guy, armed with high-tech copying tricks, has collectively done more to crush copyright than any megacorp -- check out the many illegal Potters and the frivolous Muggles-related lawsuit.) The lexicon's author knew what was at stake when he proceeded and even insisted on an indemnity clause -- a provision that saved him from having to pay any attorney fees, damages, or court costs. (Kudos to his attorney.) Time-Warner and Rowling have been reasonable in permitting the free web-based version of the lexicon for years. The lexicon's publisher understood the realities -- the real money is made selling copyrighted units of content.

Saturday, April 12, 2008

Can you patent a medical procedure?

Dear Rich: I have a question. Somebody told me that the Heimlich maneuver is patented. Is that true? Can medical procedures be patented? Does that mean somebody gets paid whenever a procedure like that is used in a hospital? I'm so glad you asked. The answers to your questions are No, Yes, and Maybe. The Heimlich maneuver -- the process that's reportedly saved over 50,000 lives, and has even been used successfully on a few pets -- is not patented. The process, though it seems obvious, now, was unknown before 1974. Dr. Heimlich did go on to patent some life saving devices, including a collapsible respiratory exerciser (4,323,078), and an improved tracheal tube (4,987,895).

Although the Heimlich maneuver isn't patented, medical procedures can be protected under patent law -- over 100 of these medical process patents are issued every month. And yes, patent owners can sue when their procedures are used without authorization. (FYI Dept.: A veterinarian won a case last year over his patented process for declawing a cat.) There is one big limitation on these patents. Under a 1996 federal law, the patent owner can't sue a doctor for infringing a medical process patent. In other words, a surgeon can use a patented process in the operating room without asking for permission beforehand. Still, that hasn't stopped lawsuits.

Anyway, thanks to Dr. H., many people -- for example, Cher, former New York Mayor Ed Koch, Elizabeth Taylor, Goldie Hawn, and Carrie Fisher -- are alive today. And since there is no copyright or patent on the method -- though there is a trademark* -- , let's all review it for our own selves. Here's the setup: A choking victim can't speak or breathe and needs your help immediately. Follow these steps*
  • From behind, wrap your arms around the victim's waist
  • Make a fist and place the thumb side of your fist against the victim's upper abdomen, below the ribcage and above the navel.
  • Grasp your fist with your other hand and press into their upper abdomen with a quick upward thrust. Do not squeeze the ribcage; confine the force of the thrust to your hands
P.S. Don't you love this Heimlich imagery created by "Little Miss" Sunshine?

*Previously I suggested that you avoid backslapping in favor of the HM, but a tip of the hat to Mexican Radio (see comments below) who points out that the HM has been demoted in favor of the back slap. (See Heimlich's response to back slaps, here.) Although there is no copyright or patent on the procedure, MR points out that the Dr. does have a trademark on the term "Heimlich Maneuver" -- which may explain why the American Red Cross now simply refers to the procedure as "abdominal thrusts."

Tuesday, April 8, 2008

Band trademark dispute

Dear Rich: My band has been using the same name as a reggae band from the 70s. We even got a federal registration to use the name. Can we go after the original band if they continue to use the name and domain name? I'm so glad you asked. That reminds me of a recent case from the state of Washington involving The Wailers -- a regional rock group from Tacoma, who, among other accomplishments, claim to have inspired the Kingsmen to record "Louie Louie" (though others may disagree). The Tacoma Wailers sued The Wailers from Jamaica -- the reggae band that once backed Bob Marley-- for trademark infringement and cybersquatting. Alas, a court ruled there was no cybersquatting because the reggae band acted in good faith to get the domain name. And the the Tacoma band lost its trademark claim on the basis of laches--a legal principle which basically means the band waited too long (or "slept on its rights," in legal parlance).

Monday, April 7, 2008

Can public domain art be protected?

Dear Rich: I have a question. I know that old paintings like the Mona Lisa are not protected anymore, but I've heard that museums can still prevent reproductions of these paintings somehow. Is that true? How can that be? Yes, as a general rule, paintings that existed before 1923 are in the public domain and can be copied freely. However, museums have argued for years that their photographs of those paintings were protected under copyright, thus enabling them to control everything from postcard sales to artbook licensing. That ended in 1999 when a court ruled that "slavish reproductions" of visual works in the public domain are not copyrightable. (The photos may have required skill; but there was no originality.) In other words, you're free to reproduce replicas of public domain artwork in the U.S. Of course, many museums still limit photographic access to paintings and on that basis, people who want high quality reproductions still have to seek permission -- one reason why few people have seen this rare painting of Mona Lisa's sister, Drea, (or so many of Mona's other relatives).