영업 기밀 부터 상표권, 특허까지 영업과 관련된 지적재산권은 광범위하게 보호됩니다. 고객 정보의 유출을 염려하시나요? 사업 기밀을 타인이 유용할 경우 법적 조치가 가능하듯이, 핵심 기술이나 독특한 제조방식 등을 사전에 특허 출원을 통해서 보호할 수 있습니다. 물론 간단하면서도 기발한 생활형 개인 발명도 보호가 가능합니다.
핵심 지재권: 특허 및 상표
자유 시장 경제라고 해서, 당신의 발명이나 기술적 고안 등을 남이 그대로 베껴쓸 수 있다면 공평치 못하겠죠. 적극적으로 비밀을 유지한 사업 기밀은 타인이 부정한 방식으로 취득하지 못하도록 법이 정하고 있습니다.
더군다나, 특허나 상표권의 등록을 통해 기존의 무형 영업 자산의 가치를 향상 시킬 수 있습니다. 경쟁력이 있는 견실한 사업체로의 성장에는 상표권 등록과 특허 출원은 중요한 기본입니다.
원천 기술 뿐만 아니라 새로운 발상이나 기존 기술의 개선 등에 대해서도 특허권을 취득할 수 있습니다. 특허권을 취득하게 되면 해당 발명에 대해서는 약 20년간 독점권이 보장되어 기술 이전이나 라이센스를 통한 수입의 창출도 가능 합니다.
권리를 방치하지 마세요.
여러가지 이유로 상표권 등록이나 특허 출원을 미루는 경우가 많습니다. 상표권은 등록하지 않으면 현재의 영업 범위 내에서만 권리를 가지므로, 신규 시장을 모방 업체에 빼앗기기 쉽습니다. 또한, 특허권의 경우 단순히 출원 가능성을 검토해 보는 것 만으로도, 향후 발생할 수 있는 특허권 침해 문제를 예방할 수 있고, 더 나아가 특허 등록을 통해 기술적 경쟁력을 공고히 할 수 있습니다.
예를 들어, IPfever 같은 경우 IPfever.com 에서 제공하는 각종 서비스와 컨텐츠에 붙인 이름이죠. 만약에 법대 교수님 한 분이 지재권(IP)에 관련된 블로그를 시작하시면서 IPfever라 이름 붙인다면 상표권과 관련된 문제가 발생합니다.
반면에, 만약 한 의학연구팀에서 “정보산업에 종사하는 전문인” (Information Professional) 사이에 많이 발생하는 병을 진단하여 IP fever라고 이름 붙였다면, 이러한 명명이나 이러한 병명의 사용은 IPfever.com 과의 혼돈을 주지는 않습니다.
예를 들어, IPfever를 진단명으로 사용하거나, 커피 원두의 명칭으로 사용한다 하더라도 법적인 문제가 발생하지 않습니다. 이렇듯, 상표는 상품/서비스와 결부되어 존재한다는 점에서 다른 지적재산권과는 차이가 있습니다.
A trademark is a mark you use in order to identify your good or service.
For instance, IPfever is a trademark as it’s associated with services and contents offered at IPfever.com. If a law professor wants to start a blog about IP, she shouldn’t name it IPfever. Such naming would mislead people to think that the blog was associated with IPfever.
But, on the other hand, if a medical researcher encounters a feverish symptom related to Information Profession, she’s free to call it “IP fever,” to publish a paper titled “IP fever,” and so on. There’s no problem with such designation because the trademark IPfever, at the moment, has nothing to do with medical diagnosis.
So, you can freely catch an IPfever, and you may sell an IPfever brand roasted coffees. But you may not provide an IPfever service if that’s related to what is offered on ipfever.com.
That’s a brief overview of what trademark does and doesn’t. Let’s find out more.
Patent is an exclusive right to appropriate an invention.
Patent is often considered a luxury to a small and midsize business. More often than not, you find out about the importance of patents after someone accuses you of a patent infringement. It could be a cease and desist letter or a service of process.
Without an understanding of how patent works, you will never know if you are safe from patent lawsuits.
The problem with a patent lawsuit is that it’s so expensive that most small businesses can’t afford it. What happens then? You enter into a settlement agreement to avoid going to the courthouse. In fact, this can be cheaper than winning the lawsuit after costly legal proceedings.
Even worse, it could happen that:
you actually came up with the idea yourself, but didn’t apply for a patent;
you have no idea what are the infringing activities that the patent owner claims, or
the patent is just bogus (e.g. it’s a standard technique in your industry).
Read more and avoid expensive mistakes for your business!
Virtually everything that gives your business a competitive edge is protected by the law.
Your supplier list is a trade secret. Your company/brand names are trademarks. You can (and you should) patent your new and unique business/product ideas to prevent copycats. For many start-up companies, intellectual properties are all they have.
Trademark and Patent
It wouldn’t be fair if others can misappropriate the fruits of your hard work. For instance, when you keep your business know-hows confidential and they give you a competitive edge, they are protected by the trade secret law.
Of course, there are steps you can take to protect your valuable IPs more securely. You often see “®” mark next to many trade and brand names. The “R”stands for “registered trademark“. Although registration is purely optional, it has become a standard practice for good reasons.
What about “patent pending”? It means there’s a current patent application. By filing a patent application, you disclose your invention to the public in exchange for a legally sanctioned monopoly for a limited time. In other words, people will learn everything about your invention, but for about twenty years or so, nobody other than you can use that invention.
The worst thing you can do is to do nothing.
For example, unless you register your business name, your right to the name is limited to your current market. (That doesn’t sound good for start-ups, right?) Also, there’s nothing legally wrong about your competitors reverse-engineering what you’re selling in the market. Once they figure it out, you can’t stop them from copying it.
Then, is there a backlog created by the increase of Chinese trademarks?
I had a chance to look at the dates of applications filed on behalf of my clients from 3Q to 4Q of ’17 and to figure out what’s going on.
Legal examination of a trademark application starts after about three months from the filing date, and depending on the assigned examiner and the result of the examination, it can take a month to many months. I felt in 3Q and 4Q of ’17, the examination process moved slower than before, comparing 1Q and 2Q of ’17, but it might’ve be just coincidental.
When an examination is completed, there’s a notification that sets forth the publication date in about 20 days. That waiting period for publication has been more or less consistent from 4Q of ’17 to 1Q of ’18.
After the application is published in the Official Gazette, If there’s no opposition during next 30 days, the application moves on to the process of being registered. This registration process usually took about 6 weeks in 4Q of 2017 and about the same time in 1Q of 2018.
So, what’s the conclusion? If there’s a backlog, it must be on the legal examination part of the process as you probably guessed. And unfortunately, the examination process is one of the trickiest part to tell how long it usually takes, rendering our survey inconclusive.
*For those of you who are not familiar with Avvo, it’s a website where lawyers give out free answers and, in return, get ranked higher in its proprietary lawyer directory.
Isn’t a lawyer just like a mechanic?
Observation: You walk into their places, and you aren’t quite sure what’s going on. And you pretty much pay what’s on the bill. Also, unfortunately you can’t quite live without them.
Why, then, there’s no Avvo for mechanics? Wait a minute, there’s a whole bunch! Youtube is full of DIY videos on how-to-fix this and that, and there are numerous websites like ask-your-mechanic.com (not a real website).
They are not the same.
Car-fix videos and websites may be in part trying to promote business, but if you think about it, a very small number of the viewers will be located in the author’s geographical area. Further, the videos more often than not wholeheartedly say “don’t waste your money, you can do it yourself.”
Many lawyers reluctantly participate in Avvo just to gain publicity.
Here’s why we should ditch Avvo.
Mechanics sell their labor, meaning what they charge for is not the solution but the work performed to implement the solution.
Simply put, DIY videos may provide a solution, but they never fix your problem. If you do it yourself, you can probably save a trip to a local mechanic. But it’s not really free because you’ll be spending your own time and resources to get the job done.
Lawyers are different.
What lawyers sell is often the solution and nothing more. To elaborate, let’s say an attorney researched an issue and found that the law and facts strongly favor the client. Now, what the attorney needs to do is filing a complaint with the court.
Scenario 1: The attorney goes to the client and say “I’ve come up with a great plan to solve the problem, so you should pay $900 for it,” and add that “If you want, I will draft a complaint according to the plan for $100.”
Scenario 2: The attorney says to the client “To solve your problem, you need to file a complaint with the court; it will cost you $1,000 in total.”
These two scenarios are essentially the same as to the effect. However, the latter sounds much more reasonable and convincing to the client.
Scenario 2 works perfectly unless there’s an alternative that involves no lawsuit.
Let’s say there is a no-lawsuit plan that will cost the client $100 less because there’s no need to file a complaint but does the exactly same job. Now, would the client be happy with the $900 plan because it’s cheaper than the the original $1000 plan requiring a lawsuit? Or be appalled at the $900 fee for the all talk and no action plan? In many cases, it’s the latter.
The attorney will be inclined to keep the client happy and earn extra money by promising justice in the name of a lawsuit. It sounds rather reasonable, but the attorney just tossed out a cheaper but equally effective option. I think lawyers shouldn’t rationalize something like this by saying that’s how it works.
Telling clients what they want to hear is never good in law practice.
I think what Avvo is doing is effectively eliminating the first $900.
Let’s say an Avvo user acquired a great advice that includes filing a complaint. The advice was given free, but can the client walk into another attorney’s office and pay $100 for filing a lawsuit? Probably not.
The lawyer who was later retained to file a lawsuit might charge less than $1,000 for it, but it all depends on how much the advice can reduce the time and cost to draft the complaint. In all fairness, no plan is like an instruction you can mindlessly follow; the fee could be less than $1,000 but never $100.
Let’s say you stick to the first attorney who masterminded the plan. Here, the lawyer just performed a $900 worth work for free, and … wait a minute. $900 out of $1,000? Is this a rate of discount a seller can afford?
The pitfall of Avvo.
A service provider can’t give out free answers when those answers are actually the essence of their service. Avvo might argue that it’s making legal service more accessible, but I say it’s going into the wrong direction.
A smart way to work with attorneys.
It starts with educating clients. When clients understand what’s going on, billing is just a formality facilitating the exchange of resources. Also, when clients are in control of what’s on the bill, they won’t complain much. Easier said than done, right?
I’m developing a platform where anyone can access a crash course on how to deal with a legal issue and work with attorneys as if they are experienced managers of their attorneys. You can check out IPfever.com where I’m working on trademark and patent related services.
For a starter, I’m writing step-by-step instructions for trademark and patent prosecution and on the side listed each step as a stand-alone product. One can follow the steps and meanwhile get help for certain steps that turn out to be troubling.
If you’re interested in IPfever, please keep reading.
IPfever is not another marketplace for legal services. For one, there’s no transaction fees for attorneys or clients. Also, any verified professional can sell their services, and there is no subscription required to access web contents or purchase legal services online.
In the future, IPfever may also include paid services like online tools and resources for law practitioners and office administrators, from which revenue can be generated. However, those services won’t unfairly compete against third-party equivalents. Otherwise, it would follow the footsteps of Avvo, leading legal industry into destructive competition.
How can IPfever reduce the cost of patent? We set up simple rules: (1) you do your own homework; (2) attorneys work online; and (3) we make sure the attorneys fees are proportional to what you get.
First, you do your own homework.
If you just ignore an issue because it’s too much to deal with yourself, nothing ever changes. Most small businesses don’t have a legal counsel of their own, meaning you probably need to spend extra money to work on IP issues. This is a mishap that can be avoided by educating yourself. In fact, basics of patent law can be understood within a reasonable time as long as you know where to look.
Second, attorneys work online.
This is an overly simple statement of what actually needs to be done. We’re talking about reducing unnecessary cost on lawyer’s part. Why do you need a fancy office space in downtown when the government agency you’re dealing with is not even in town?
When a patent research is virtually all about online databases, you don’t want to pay law firm’s researchers, administrative clerks and paralegals for an initial review of your company’s patent portfolio. It is an instant impression of your attorney that you want the most when you ask a lawyer if your business needs a patent. Unfortunately, a lawyer’s typical hourly charge include every help listed above.
Lastly, IPfever makes sure you get what you paid for.
It is unfortunate that the most businesses and individuals can’t afford a lawyer. What about a free initial consultation? We all know free stuff can be poisonous. When an attorney greets a free client, what would be first in his or her mind? He or she wants your business! A need for legal service will be emphasized, and a quick and easy solution is disfavored over conservative and costly measures.
IPfever wants to solve this problem with fairness in mind. If you hard press lawyers to give out more free stuff, it might good in the beginning but won’t last long. Nonetheless, it’s plausible that you can set up a fair ground where you pay for actual value of lawyer’s service. This is awesome not only for clients but also for lawyers who has a good legal mind but lacks marketing skills.
A fair ground starts with a better understanding.
If you are retaining an attorney because you don’t know a thing about the law, then you’re like asking a mechanic to take care of your car with a promise to pay whatever is done.
Patent is an intellectual property right, which is not aimed to boost the economy but intended to advance science and technology. So, many business-minded people will struggle with the basic concept of patent and how it should be used for their business.
On the other hand, patent is recognized as the most reliable and strong intellectual property right in business. You probably heard about its importance even if you really don’t know much.
The hurdle for small businesses in developing a strong patent portfolio is the expense. Does it have to be prohibitively expensive? Well, it doesn’t have to be. The more you know about the patent, the more likely you will find a solution for your business yourself.
