The Challenges of Working Without a Patent Attorney

Intro (00:09):
Welcome to innovations and breakthroughs with your host, rich Goldstein, talking about the evolutionary, the revolutionary, the inspiration and the perspiration and those aha that change everything. And now here’s your host rich Goldstein.

Rich (00:32):
Welcome to innovations and breakthroughs where I featured top leaders in the path they took to create change. I’m rich Goldstein and past guests include Steve Simonson, Ryan dice, and Roland Frazier. This episode is brought to you by my company, Goldstein patent law, where we help you to protect your ideas and products. And, uh, if you’d li if you’d like to find out more about how to protect your idea, go to Goldstein patent law.com, where there are amazing free resources for learning about the patent process. And you could also check out the book that I wrote that explains in plain English, how patents work it’s called the ABA consumer guide to obtaining a patent. And so this is a special episode that I’m doing along with the fellows from managed by stats. I have with me here today, Curtis Johnson and Danan Coleman. And, uh, we’re gonna have a conversation. That’s gonna be mostly guided. I, them to talk about IP, which is an important topic for our podcast. Uh, but I’m gonna turn it over to them. And, and then we’re going to have a great conversation

Danan (01:34):
Basically, you know, in order to get enhanced brand content and to, to get all the stuff that goes with that, um, you need to get a trademark and then Amazon grants you, everything that you want. Right.

Rich (01:44):
Right. So basically, um, what you’re referring to is brand registry. Yes. So, um, brand registry is something that you want and there’s really two aspects to it is once you get brand registry, you get the enhanced content and those advanced tools mm-hmm <affirmative> and, um, then there’s also the aspect where you can protect that brand. And you, you could prevent other people from using that brand on Amazon. Yes. Yes. So that’s brand registry. And so in order to get brand registry, you need to have a registered trademark, right?

Danan (02:13):
Yes. So having recognized that I, uh, went down the path of doing it myself. <laugh>

Curtis (02:22):
I, I know this story, so I Know where this is going.

Danan (02:24):
Curtis has been there for the whole thing. So, um, trying, so first of all, I don’t like going through law because I don’t particularly care for the language of Latin, which is what law is written in, essentially. Uh, correct me if I’m wrong, but you know, the, the Latin words themselves together means something else then alone. And it took me a little bit to figure that out. And the, the problems that I went through was that I went D enterprises incorporated. Nobody’s got that name, but me, right. So I thought 400 bucks, I’ll do it myself. Nobody’s gonna have my name. Well, I got denied. And then I went because it’s a surname and enterprises is generic and incorporated as generic. So I couldn’t trademark those. And so I went, ah, but wait, I have, uh, what is it when you, when you have been using a term for five years, I’ve forgotten the term, uh, claimed,

Rich (03:27):
Well, distinct distinctiveness distinctive requires distinctiveness

Danan (03:29):
Acquired distinctness. Yes. So, but I have that mm-hmm <affirmative> and, uh, and then it was denied again, you know, and these are like, Hey, there’s an office action. Check it out. We’ll wait for your response. Then I got, I had to put in a, um, uh, assigned affidavit that I would not claim that I had ownership over enterprises incorporated.

Rich (03:52):
And that it was you didn’t, you didn’t sign that, did you? I did. No, I’m just kidding. Yeah. Right. Thanks a lot. What did I do? I was like,

Danan (04:02):
I was, I was, my immediate thing was like, well, whatever choice did I have, but

Rich (04:06):
You’re like, that was the right thing to do. Right. <laugh> was it the right thing thing to do? I think, yes. Yes, it was. Oh, good. Okay. No, the right thing to do was for me to utilize my dance knowledge to break your child like that, that was the right thing to do. Yes.

Danan (04:19):
That was the right thing to do. Uh, so yeah, basically after that, they went, okay, cool. We’re gonna publish you in the paper and see if any, anybody, uh, claims that I can’t use that. Right. These are all things that you should know about learning from him and not me, by the way, or the website or, or thet videos, which actually aren’t that bad butts is T a S mm-hmm <affirmative>. Um, but, uh, then I got denied again. Yeah.

Rich (04:50):
Tease videos are a whole different thing. Yeah. That’s, that’s something we probably shouldn’t talk about, right. Enough podcast. Yeah. Yeah. That’s gonna be edited out right now. Okay. So T

Danan (05:01):
As of right now, I’ve got a good gauge of our future relationship and all these exactly.

Rich (05:07):
<laugh>, you know, at least could be 75% serious and 25% just silliness, like that’s it’s balance.

Danan (05:15):
Yeah. I’m about the opposite, but, uh,

Rich (05:18):
We’ll see how that goes. Well, when we’re talking about IP, that’s my equation. Yeah. Yeah. If it’s anything else then it’s probably opposite. Yeah. <laugh>

Danan (05:25):
Good. Um, alright, so where am I at? So I’ve been well,

Rich (05:28):
I’ll recontextualize it? Well, um, for you. So, so basically, um, you know, situation is that you, you can’t protect a name that’s descriptive, um, okay. Or generic. Um <affirmative> but essentially it’s like, you can’t protect red licorice mm-hmm <affirmative> because it’s describing what the product is. Yes. Um, but certain trademarks can acquire distinctiveness over time. Mm-hmm <affirmative> that people think of a specific company mm-hmm <affirmative> when they’re thinking of something like general motors, right. It’s like people know of it as a particular car company. Yep. If you could show that, then you can sometimes get protection for a descriptive mark. Yes. Um, so that’s actually what I had to do. Yes, exactly. And, and, and there’s, you know, you would often consider those terms. Like, I it’s, like I would have the expect in filing, um, save Dan in enterprises, Inc. That, um, you know, first of all, I would never include the ink.

Rich (06:24):
There’s just, no, there’s no point to that. Okay. Uh, maybe Dan and enterprises. Okay. Um, but it’s like, think about what is the mark that people see when they see your product. Yeah. Do, do they see Dan in enterprises ink, or do they see like maybe on the box, it says Dana and enterprises. So maybe it just says, Dana. Yeah. Uh, is how do you present it to the public and that’s the mark you want to go for? Yeah. Um, and in general, though, some of those terms could be like throwaway terms, like enterprises. Like it’s very likely that they’ll say, well, enterprises is just a descriptive term. Yeah. You need to disclaim that. And then all you’re doing is you are, is you are telling the trademark office and you’re telling the world that we’re not claiming the word enterprises outside of, in combination with the overall mark of Dana and enterprises.

Rich (07:11):
Yeah. Okay, great. So it’s a disclaimer, so it’s pretty much expected if I filed a mark like that, I would expect to have to disclaimer that, uh, and it’s really, it’s, it’s no big deal. Cool. Um, for you, but, but the, yes, you, well, for you, I’m saying it’s no big deal in terms of the impact of it. Like it like the impact on your rights. It’s not a big deal. Yeah, yeah, yeah. Um, so that’s kind of how that works, but in general, what you want to do again, is you want to pick a new aim that is distinctive, not descriptive mm-hmm, <affirmative> something that, uh, that kind of creates more of a unique branding that people might associate with your company and your company only. Right. So like financial services, like that’s generic. That’s not gonna get you very from far. Yes. But it, if it’s like, I’m looking across the room, I see a cooler, um, like Yeti financial services, like then maybe you have something there’s a distinctive term. Right. Okay. Uh, and, uh, Yeti

Curtis (08:09):
Financial services. I’m just trying to think of how awesome that could be. <laugh>. Yeah.

Rich (08:13):
But you know, but there’s another rabbit hole to go down there too. So the thing is, uh, anytime you have a Mar it can’t be confusingly similar to another mark, right. Where people might think you’re affiliated with the other company now, now ordinarily I’m lets just finish my thought on this cuz I, I think I’m I know your question. Yeah. Um, so like ordinarily, um, trademarks are divided according to the product or service. So it’s like if you have a name that’s in use in a very different field, that’s not gonna borrow you from using it in your field. That explains another part of the process that

Rich (08:49):
I had some confusion on. Okay. Got it. Okay. Cool. And, and so then normally you like, you could have Yeti coolers mm-hmm <affirmative> and then Yeti financial services, without conflict only issue is, is like, when it becomes a really famous name, then it’s starts blur like Nike financial services. You’re not running. There’s no way. Yeah. No way you can do that. So things like, um, very famous brands, the lines or uh, because people, when they hear that name, they’re already thinking of one company. Yeah. And chances are, they’ll think, oh, they must have gone into the financial services business. So it’s and, and some of it has been taken really far. Like McDonald’s extremely famous trademark. If you wanted to open a shoe company and call it mixed shoes, they’ll shut you down. Really? Yeah. Basically like MC anything. What about MCCA? A McCafe is probably, it’s probably a

Danan (09:41):
Trademark already

Rich (09:42):
Got that one. Right. But it’s like McAffee right. McAffee yeah. Okay. Interesting.

Danan (09:48):
Huh.

Rich (09:48):
Okay. But that’s, you know, when you have someone that’s as big as McDonald’s like they have the money to, to make the issue. Yeah. One of the things about a trademark is it’s up to you to police your brand. Right. You have to maintain the strength of the brand by going after people that tend to step on that. Otherwise you risk losing

Danan (10:06):
It. Yes. That makes sense. So I just wanted to have you clarify one thing in that there are two, well maybe there are more than two, but per my knowledge, there are types of trademarks, a word trademark and a mark, a mark, like,

Rich (10:21):
Like a, like a design mark or a logo mark. Yes, absolutely. Yeah. So, um, in trademark application you can go for the word itself like D in or Dan and enterprises and association with a certain type of product or service, which is what I did. Right, right. Uh, and that’s the word mark. And by the way, for Amazon, that’s what you want. Uh, if they want, if, if you want the ability to stop other people from using that name, you want a word mark? Um, a logo mark is, um, in combination with, um, some type of design, some fancy font or symbol like that logo can be protected. Yes. Usually the angle of attack is to go for the word mark first and the logo mark second.

Danan (11:06):
Okay. Well that’s actually, I, at least I did that. Right. Cuz I knew I wanted the word mark first because the only stuff only, only products that I’d produced had the words on there. I did not have a logo at that of time. So I’m, I’m glad I at least did that. Right. Even though it took 14 months <laugh>

Rich (11:22):
Yeah, well, no, that’s, that’s great. That’s great. And uh, absolutely. And look, and here’s the thing with trademarks is you had kind of a long meandering road to get your trademark because you did it

Danan (11:32):
Yourself. Did you get your trademark? I did. I did. I got granted my trademark. It wasn’t meandering. Like you said, it was more like lost in a forest or yeah. Stumbling

Rich (11:41):
Through the sea. Yeah. So you didn’t count to any trolls or any like, uh, mythical beings,

Danan (11:46):
You know, they’d be in stone if I had, but anyhow. Right, right. What, what I had was I would get, I would need to take an action. Right. Mm-hmm <affirmative> get a, a partial denial need to take an action. Start looking up to it, say, screw this, I’ve got another 30 days before I have to put in a reply. Right. Run it down to the wire and then go really hard on the research. Yeah. Finding pages, which isn’t all that convenience. It it’s

Rich (12:14):
Like it’s, it’s not, I had

Danan (12:16):
To contact the attorney, uh, the patent attorney, um,

Rich (12:23):
The us, the trademark, the trademark examining attorney. Yep.

Danan (12:26):
Yes. That guy, uh, multiple times saying this is what I’m going to reply. Am I doing this correctly? And, and you see like, oh, well, no, you need to do you need to do this thing? I’m like, okay, now I need to go onto Google and search for that term to be able to take the

Rich (12:44):
Right action. Exactly. And um, you know, and so then first of all, that takes a lot up a lot of your time. Yeah. And then also you could easily get it wrong because a lot of times it’s see trademarks is highly nuanced and it’s kind of like at this point, I know it when I see it. Yeah. Um, and it’s, so it’s kind of like, um, sometimes all the research could be explaining how to do this thing, but then the answer is actually no, don’t even do that thing. Right. Do something else. Yeah. I can’t, I it’s like could okay skip this or this is the reason to redirect and change. Yeah. Directions, not just learning how to answer this thing, but it’s like, you might need to pivot. Yeah.

Danan (13:22):
That’s precisely what I ran into doing it myself. I I’d go down a rabbit hole and go, oh, he said, I don’t even need this. That didn’t work. Yeah. That was useless information at all. Just trash out of my mind. Right. Um, so let me ask you a question, how long, and I realize that this is, uh, highly dependent upon who’s contacting you, but what’s what would be a good average time to where someone comes to you and then you come back to them and say, it’s been approved and now it’s gonna go into thes that Gazette being the, uh, uh, the Gazette being the,

Rich (14:00):
The, the official Gazette where they publish your trademark. Thank you. Um, once your trademark is approved, it gets published for opposition. Yeah. So then there’s a 30 day period where other people can then say, well, well, wait a second, this, this shouldn’t be registered because it conflicts with me my rights. Yeah. So it’s called publishing for opposition. I

Danan (14:18):
Don’t even know why I keep trying to explain these things.

Rich (14:21):
No, it’s okay. You’re, you know, you are, you have enough information to, to invoke the explanation, the correct.

Danan (14:28):
That’s all that matters

Rich (14:29):
Here. Right. He’s like, I know there’s a, I know what you, I know what you’re getting at. Yes. So, um, it varies. I mean, um, the trademark office has gotten very busy recently. Sure. So it’s a bit longer and I’d say

Danan (14:41):
Let’s take that part out of the equation because busyness okay. That, that doesn’t, that’s not necessarily your factor. Um, because that’s how busy they are. Not necessarily how much knowledge you have in order to do the right things. So what’s the, what’s the time involvement on your end. And then, and then we can just kind of tack on the fact that it’s three months after you’ve been published in the Gazette and or whatever it is and the time involved of when you’re waiting for a reply.

Rich (15:12):
Okay. Yeah. I mean, while, while typically first of all, like, um, a client comes to us, first thing we want to do is, is a trademark evaluation. Do a deep dive. Sure. To see what, um, they might be in conflict with mm-hmm <affirmative> and then we’d advise what applications we should be filing. Mm-hmm <affirmative> um, usually within two or three weeks, we get all of that done and get it filed. Then it’s a, a good amount of waiting for the trademark office. Um, it’s more now than it was before. Um, you know, going back just a year ago, it was maybe three or four months to have it reviewed by the trademark office. Yeah. That’s and then to come to now, it’s, um, it’s getting closer to 10 months. Oh wow. To have them review it. Okay. They are backed up with a lot of, um, a lot of people filing trademarks. Um, the rumor is unsubstantiated. I haven’t seen stats, but a lot of Chinese sellers are filing lots of trademark applications. Well, you know why

Danan (16:05):
That could be happening. Yeah.

Rich (16:08):
Anything that would go along with yeah, no, that, that seems inconsistent with everything that I’m just how Chinese operate on Amazon. No, no, not at all. That’s a, you know, that’s a fallacy, a myth old wives tale. I’m I’m gonna call you on that one. Okay. Yeah. Yeah. Come on. Rich. I thought you were gonna come down here and tell us the truth about this. Um, but, but yeah, so it’s, it’s gotten to, would be a longer period of time. Cool. So then, well, you know what I see in all this anyway, it’s like, if you’re doing your own trademark, it’s possible to get through the process like you did, you got through the process. Yeah. Um, a lot of people are successful in getting through the process, but is it worth it? The thing with trademark? Okay. It is

Danan (16:50):
Not worth it. It is not worth it.

Rich (16:54):
Yeah, exactly. And, and the thing with trademarks is that it’s highly nuanced. Yeah. Whereas like a little sea of direction can make a big difference. And like, I would not have applied to for, with the ink. You’d be better off with Dean and enterprises as the mark itself. For example, just little things that make a difference. It’s not probably gonna make a big difference in, in the long run, but it’s just, there are these little nuanced things that make a difference or when we get a response from the trademark office, knowing which direction to go. Yeah. Um, so it’s like if there’s value at stake, if the, if the thing that you’re filing matters to your business, it pays to have it done. Well, have it done. Right. So then

Danan (17:30):
Would you say that it’s, uh, just to kind of round out the questions so I can do you, my comparison with me a few weeks time, in your case of like, in order to have all of your ducks in a row for presentation, mm-hmm,

Rich (17:43):
<affirmative> a few weeks to get everything together and get it filed. Yep. Okay. So

Danan (17:48):
A few weeks and 14 months for me, and that’s when the us PTO had a lot less going on, right. A lot less going on than they do now. So how much, how much, here’s the question for everybody? How much is your time worth multiplied that by how I’m just going to estimate I spent 30 hours researching maybe even more, but at least that much researching stuff I’m did more. I’m sure I did more as well. Maybe I shouldn’t even be just with the amount

Curtis (18:22):
Of time that we spent talking about it. Yeah.

Danan (18:25):
Yeah. Okay. So let’s call it a full work week, 40 hours that you spent on this, right. What’s your time worth multiply by your estimated value or if you haven’t gotten it figured out, but I guarantee you’re, you’re worth hundreds of dollars an hour and throw that idea into your bin of awful ideas and just go see

Rich (18:46):
Rich. Yeah. And also what’s it worth just to know that you’ve got out it handled correct. So that you can focus your attention on the other. Yeah. Oh, that’s another

Danan (18:54):
Thing in your business. Yeah. Yeah. It’s like, it’s like wondering where your child is. Right. You know, it’s like it’s in your house, your child is in the house with you, but like, why is it quiet? Where did that? Child’s terrifying. Isn’t it? Yeah. It’s exactly. Yeah.

Rich (19:10):
Oh,

Danan (19:11):
Oh, oh clearly your iPad’s in the toilet right now. Yes. Not a true story. Maybe

Rich (19:15):
So. Yeah. So then the question for, for, um, so then the question I have for you, the audience is I’m gonna lean in here. Ooh. What’s your time worth? Exactly. <laugh> anyway,

Danan (19:28):
Goldstein, pat law. <laugh> All right. Cool. Well,

Curtis (19:33):
Yeah. And you know, I, I had a very different type of situation much earlier on the line. So we were looking for a product in the fitness space and I went on to us. PTO did a ton of searches, came up totally empty handed, meaning didn’t find anything figured would be a problem. And we’re talking between me and my business partner. We probably went through a couple thousand patents just scanning to make sure we weren’t actually, cuz we knew that there was another major player on that

Rich (20:05):
Particular. Well, the question is you scanning them, you said to make sure that we weren’t, but how do you even know when you’re in conflict?

Curtis (20:11):
Well, yeah, so, and that’s really where the, the here I’ll cut to the moral of the story. Yeah. Or the, the let’s cut to the punchline where it went all wrong, at least early enough that we didn’t, you know, really get into trouble. But basically, um, we were about to order from our manufacturer, you know, probably 10 to $15,000 worth of, you know, a first inventory order. And I happen to call up a buddy, uh, that’s in the Amazon space who I’ve gone to before for coaching. And I mentioned the product and he got really wide eyed <laugh> and he goes, um, you should talk to, so, so and so cuz he did that and got shut down by that said company. So this is just an interesting thing that I’m sure a ton of Amazon perspective sellers or sellers who are diving into another product. Are, is it, is it something you can do on own to make sure you’re not stepping on someone else’s to

Rich (21:10):
Um, absolutely not with um, I mean I said absolutely not. What did I have to say? Absolutely. Yeah. If I had a let’s go a little exception to it. I probably should said absolutely. But I would say equivocally knows. Possibly not. Absolutely. Well, okay. So here here’s the thing, cuz I have one hack or one, one possible cheat that there is that’s possible. So yeah, absolutely not. In terms of being able to go through the patents and, and search to see for if there’s an existing patent, that might be a conflict. Okay. But there is a workaround, the workaround is that, um, us patents expire and once they expire the fair game, is it

Danan (21:52):
99 years

Rich (21:52):
Or something like that? Um, no, that’s a Jay-Z song. Okay. Okay.

Danan (21:57):
Yeah. 99 years. But timing

Rich (22:00):
One. Yeah, exactly. No it’s uh,

Curtis (22:04):
If I had a hat I would take my hat off for that reference. Yeah.

Rich (22:07):
Thank you. That, thank you. Pop culture references on my specialty. It’s a very good

Danan (22:12):
Specialty. There is a game between my friends is, will Danon know this pop culture reference mm-hmm

Curtis (22:18):
<affirmative> I typically don’t and you’re bad at it. Oh, okay. You’re bad at I’m

Danan (22:21):
Good at not knowing. Oh yeah. Okay.

Rich (22:23):
Yeah. Okay. So yeah. So now, so the serious answer to the question much shorter amount of years, 20 years from filing essentially 20 years from when the application was filed. And so, um, the shortcut is that like, if it’s a very simple idea, like, could you hand me that screwdriver that’s right there. So like, you know, you’ve got this, you’ve got a Flathead screwdriver, very, very basic, um, design, very configuration. Um, if you could find a patent that’s expired, let’s say a patent from 25 years ago that has this exact shape that it’s this exact invention. Right. Then you know, that that patent has to be expired. Right. And then therefore, you know, if, if you want to make anything, if you wanna make something exactly like was shown in an expired patent, then you’re free to do so. So that’s, it’s kind of a, a little bit of a workaround for, for, but this doesn’t apply to more recent products. This applies to something 20 years older. Yeah. Like something that’s kind of like a, a staple type product, like, oh a paper clip. Can I make a paper clip? Sure. A, a clip. Well, yeah. If like, if you make it just like, it was just like, it existed 25 years ago, 30 years ago. And by the way, it doesn’t even need to be a patent. It could be something that was out there in public 25 years ago, 30 years ago, you see it’s to

Curtis (23:45):
Originate that long

Rich (23:46):
Ago. It has to, it has to have been out in public that long ago. The reason is this. So it’s a little bit of a, of a additional logic to it. And that is that, um, the rule for at least a century has been that once you come up with an idea, once you put it out there in public, if you haven’t applied for a patent within one year, then it’s too late.

Danan (24:08):
Ah, it’s

Rich (24:09):
Patent pending. Yeah. So you, that’s a, and that’s something that most entrepreneurs don’t know, you need to apply for a patent. Um, generally you should do before you make it public. But in the us, there’s still a grace period that if you’ve applied within one year, then you’re okay. Um, can I hold onto this screwdriver for one more moment? Or do you need it? Do you need it? You just, you feel lost with thought.

Danan (24:31):
I thought maybe you were just, he done

Rich (24:33):
With him on podcast podcast. No, but I’m making my point and it’s sharp. This is a sharp point. Uh, so, so then the reason I could say that then about it being out public is imagine there was a product out there 25 years ago. It was out there in public, um, worst case they had to apply for a patent 24 years ago, in which case the patent would be exploited expired at this point. So whether or not they ever applied for a patent, you know, if it’s out there 25 years ago, then you you’re safe in knowing that, that you could make exactly that thing you need to be careful about is this though is like, you want to make this product exactly. As it was described 25 years ago, you you’re free to do so, but maybe the current manufacturer has used some type of new materials. It maybe possible that there’s a patent on some combination of materials or maybe they’ve improved it. And they’ve added another little like latch over here that let you ratchet it on it. Yeah. There’s something you’re not free to do that. You’re free to do exactly what was in the patent. You know, that dates back to there or what exactly what was on the market now 25 years ago? Why are you

Danan (25:40):
Not free to do that? If, if you’re taking something that’s patented and then making a change to it?

Rich (25:45):
Well, a lot of patents off for an improvement on something that existed. Right. Okay. So, so, so it’s possible, there could be a patent on it. It’s not likely that there’s gonna be a patent on the different rubber materials or whatever, but you’re not in the, you’re not totally in the safe Harbor, like you would

Curtis (26:01):
Be. Yeah. Unless it’s like in, especially we’re talking tools, it could be an anti fatiguing handle. Some exactly

Rich (26:07):
Crazy. Yeah. And I, I will pass the talking stick back to you. Thank you. <laugh>

Curtis (26:13):
You now have the Baton.

Danan (26:15):
So, uh, I think that kind of brings us to our next

Curtis (26:18):
Question. That one, the thing on that also is that, um, so then the question becomes out because like here let’s look at the, the world that most of, so anyone who’s coming into Amazon, for instance, a lot of what these guys are doing is finding some product out there and going, how can I tweak this? Just ever so slightly. So it’s a little better than my competition at that point, I guess, to your point, you’re, you’re potentially diving right into someone else’s patent thing.

Rich (26:47):
Yeah, exactly. So here’s the thing, and this is a really common misconception about patents is people think like, okay, if I got a patent, that means I’m not infringing anyone else’s patent, it’s not true. You could have a patent and still be infringing. I mean, seems that it seems logical though, right? It’s like, Hey, if I’m different enough to get a patent, that must be I’m different enough to not infringe that’s I would think so. Yeah. But kind of the way it works, I’m just gonna grab the screwdriver back again, talking stick the, the talking stick slash screwdriver. So talking tool. So yeah, no one can say a word while I’m holding. This is the talking stick. Um, but basically you, yeah, yeah. Yes. Thank you. Thank you. I’m from New York. So I get that <laugh> um, and, uh, uh, so it’s like imagine that, that, um, one person has a patent on the screwdriver.

Rich (27:34):
It’s basically, it’s got this, um, it’s got this handle and then it’s got a shank with a, with a flattened end. Mm-hmm <affirmative> let’s say they have the patent on that. Mm-hmm <affirmative> you come along and you say, um, yeah, but I could add this ratchet mechanism in here, um, to allow it to, to ratchet. I think you can get a patent on your improvement, but you can’t make a screwdriver without it having a handle. Yes. And the shank with a flatten end. I got it. So you would need to license from the person who has the screw, the other

Curtis (28:05):
Aspects of the

Rich (28:06):
Screwdriver. If that patent was still in effect, right. Often the way it goes is like you’re building on, um, it’s called prior art things that came before you often you’re building on prior art. That might be 50 years old. And so it’s not like anyone has a patent on the basic idea of the screwdriver. Yeah. Uh, but any, but that’s how

Curtis (28:25):
With a, with a mustache

Rich (28:27):
<laugh> right. Well, that’s copyright let’s, let’s not go there, you know, in either sense. But, um, but yeah, so that’s kind of how that works. So if you are, if you’re seeing an existing product, you say, well, I’m gonna tweak it. You’re not necessarily going to be out of trouble with regard to. Right. Okay.

Curtis (28:43):
That makes sense. From my understanding isn’t it at, you have to be at least 25% different or something like that. I’m sure. Even that may be, I think that’s

Rich (28:51):
On copy. Well, here’s the thing, um, we’ve gotten no <laugh> and uh, definitely not, but, but you’re in good company. Okay. Because like a lot of people think that because how do you make something 25% different? How do you think if I don’t have a handle, is that yeah. Is that 25% different? Like you can’t quantify it right. The way it works with utility patents, utility patents is what protects the functionality of an invention is through what’s called the patent claims at the end of the patent. It defines the critical combination of what’s necessary to infringe Uhhuh. So it could be like basically, um, uh, a hand tool have a handle, um, handle having, um, having a flattened end and then having a, a SHA that extends into that handle with a flattened, uh, opposite end or something like that, that definition that’s what make infringement. And that’s why you guys looking through the patent record trying to say, are we infringing? You need to know how to interpret patents. Yeah. To

Danan (29:46):
Determine that I was just gonna say, not only, so I’ve seen that. Right. And not only, not only do I hate reading that. Yeah. I’d also be the hate, hate to be the guy that has to that

Rich (30:01):
That’s me. I know. It’s, <laugh>,

Danan (30:04):
I’d hate to be you. No, <laugh>

Rich (30:06):
I would it’s it’s it’s not easy being me tell really with you hitting it’s like, I feel like that’s

Danan (30:13):
Another song reference. Right. Uh, but, but not having your knowledge in this area, like if it were just, again, I, my own trademark, I would hate to have to describe my own patent. Oh, I’m sure a patent is also way whole nother league. I would. Yeah.

Rich (30:31):
First of all, I would no, a whole nother leak. Here’s here’s, here’s the hierarchy of it all. I would say when it comes to a copyright, which is for content mm-hmm <affirmative> you could do your own copyright application. You don’t need me for that. Okay. Trademark application, someone could use you. Yes. But they could use me. And, and actually for some sellers, I do a lot of bulk copyrights because there’s, there’s a lot of value. That’s another story. But, um, trademarks it’s possible to do on your own. It’s like, if you’re launching something outta your garage and you’re just like, this is not gonna be big. It’s just a hobby thing. Maybe do your own trademark. It’s okay. Yeah. You, you

Danan (31:06):
Probably still a pain in the

Rich (31:08):
Patents. Absolutely. Can’t be done on your own. Yeah. And it absolutely matters who you work with. Like there are people that do, that makes sense. Crappy job for patents that are, that call themselves, uh, you know, these son of a call themselves patent of, uh, Glen, Gary, Glen Ross Uhhuh. It’s like you son of a call yourself salespeople. <laugh> no, but, uh, you know, like there are, um, you know, there’s a lot of really bad patents out there too. Yeah. Here’s the thing about patents is it’s possible to protect a broad invention. Like that covers a new concept if it’s written correctly, mm-hmm <affirmative> um, but a lot of patents end up being very narrow, very specific and they cover details. That just don’t matter. Yeah.

Danan (31:51):
You know? Right. Which kind of bottle you into one particular thing.

Rich (31:55):
Yeah. Because then if, if someone else is not copying that feature, then they’re not infringing. Right.

Danan (32:00):
That makes sense. Cool. Well, I have, we have one more subject and I think we are in about a need to wrap this up. Okay. I’d like to ask you about intellectual property, how it concerns an Amazon seller mm-hmm <affirmative> and, and, or does it, does it concern Amazon sellers and how

Rich (32:21):
Okay. Yeah, no. Um, sometimes it does and sometimes it does. Okay. Right. I mean, if you’re, um, if you are, um, selling blankets generically, right. With no particular brand name, then it doesn’t, this

Danan (32:35):
Is kind of what I do. We don’t know anyone who does

Rich (32:37):
That’s then it probably doesn’t concern you, like, you’re just selling a generic product. Yeah. And, um, you know, white labeling, whatever. Like, but, um, first of all, if you are, if you have something that’s unique, something that the product really is distinct and you think people are gonna start copying that uniqueness, then you might wanna look into it if, whether it’s possible to patent it, not every type of uniqueness can be patented, but it often pays to look into it because, you know, um, a lot of times with white label products, it’s a race to the bottom through paper, click and other things. Right? Absolutely. And so everyone looks to differentiate their product. Yeah. If you actually differentiate the product itself, you might want to look at the possibility of protecting it. Um, and then if you do that, uh, just, um, super quick on that there’s utility patents and design patents, utility patents is more conceptual, more about the structure that makes it function. Design patent is about the way it looks. Mm-hmm <affirmative> traditionally people would say design patents, aren’t worthwhile. Cuz you change the way it looks, you get around it mm-hmm <affirmative> but you know how people copy you on Amazon? They don’t get imaginative

Curtis (33:45):
To the

Rich (33:47):
Detail. Exactly. They don’t say, wow, that’s a cool concept. Let’s design our own. They’ll make color. They just take yours. Exactly. And therefore it would infringe on a design, the design pad. Right. The other thing too is, um, because patents are all about wording and definitions. Mm-hmm <affirmative>, it’s difficult to enforce on Amazon. There’s more involved procedures. Yep. Whereas design patent, if you’ve got a design patent that looks like the product, you, you do an IP complaint through your seller account. Mm-hmm <affirmative> and you say, this is my design patent number. They’ll look at the pictures and they’ll shut ’em down. So, you know, seller central people, whoever they’ll look at the picture, they’ll say, oh yeah, that looks the same. They’ll shut them down. Right. So design patent could be very effective. Okay. Um, for preventing people from jumping on your listing for jumping on your product, that’s one. Um, so we’re,

Curtis (34:36):
We’re going into the definitions of intellectual property,

Rich (34:39):
Correct. There’s some definitions in here, but really I’m trying to do is say what’s the point of, of like when does IP matter for Amazon? Okay. So number one is protection. Yep. It’s like protection of the product when it’s possible through utility or design. So now number two is gonna be a brand. You have branding that you use, you should get, um, get that trade marked and then you go for brand registry. That’s

Curtis (35:04):
Not even just to mention just for the purpose of being able to get those added features, added advertising, added a plus content. Yeah. Of course. All of that stuff. All the extra yeah, yeah. Worthwhile alone for that reason. Definitely.

Rich (35:17):
Exactly. And then third and final reason why IP matters to Amazon sellers is that you could end up stepping on someone else’s toes is that like I’m dealing with more and more situations where someone gets shut down because of someone else’s patent. Yep. Uh, and um, so it pays to know a bit about IP mm-hmm <affirmative>, um, so that you could make good decisions about when to patent something. Cool. I, could I give you a resource for that? If you like,

Danan (35:43):
What’s what’s the resource’s name?

Rich (35:45):
Um, rich Goldstein. Well, um, no, I mean, this it’s a more top of the funnel resource than

Curtis (35:54):
In this room kind of

Rich (35:55):
Research. Well, it’s my book. Got it. So I, I wrote a book for the American bar association. Mm-hmm <affirmative> uh, they asked me to write a book to explain to entrepreneurs how patents work it’s called the ABA consumer guide to obtaining a patent. Okay. And, um, where can we find it?

Curtis (36:10):
That is one sexy name by the way,

Danan (36:12):
ABA, this is

Rich (36:13):
Patent. Yeah. That’s you know, a big Feil credibility feather in my, a cap that’s for sure. Yeah. Um, but by rich Goldstein <laugh> um, I mean you could, you could find it on Amazon, but I’ll, I’ll send the copy to anyone in your audience. Who’d like, oh, that’s, that’s awesome. Thank you. That’s awesome. And, and all they have to,

Curtis (36:30):
So guys make sure to just comment in the actually they should probably,

Danan (36:34):
They need to reach out

Rich (36:35):
I’ll I’ll tell you, I’ll tell you exactly how to do it. Real, real simple. Um, you send, um, send the message to my assistant it’s assist, IST Goldstein, pc.com. Um, and include your name, mailing address, cuz it’s a physical book and your phone number because you know, you can’t send anything on Amazon without a phone number phone. So an email address, phone number to assist social security

Danan (37:01):
Because we need that for tracking.

Curtis (37:03):
No,

Rich (37:04):
No, yeah, no. And I’m, I don’t even put you in a funnel or anything. Like you’re not even gonna get like follow up emails or anything. It’s just, I, I, I’m passionate about educating people about this stuff and I’m happy to educate anyone who really wants to learn to,

Curtis (37:19):
We, we know people personally that have literally lost their business from errors in this area. Definitely. Yes.

Danan (37:26):
It’s a very important point or products at, at the, at the, at the best case scenario. Just a product. Yeah. Right. I have friends that have had that happen too. And they, you know, it’s not until you’ve ramped up that somebody notices you, you know what I, yeah. Like you’re not noticed until you’re making money and then suddenly you can no longer make that money. So you know, better to have your ducks in a row first yeah. Than second.

Rich (37:51):
Right. Cause you don’t wanna play second dock to the first fiddle or something like that. I don’t know.

Danan (37:57):
I almost went somewhere. I JayZ.

Rich (38:00):
Uh, it could be,

Danan (38:01):
It could be second duck to the first fiddle. Yeah. We think

Curtis (38:04):
We, oh God. Yeah.

Danan (38:07):
All right. Awesome. So, and then just one last kind of parting thing. Could you give us a simple definition of what is intellectual property? Yeah. What is the definition of that word?

Rich (38:18):
Intellectual property is of the mind. Okay. So, um, intellectual property is, um, they call it intangible property because it’s about ideas. Mm-hmm, <affirmative>, it’s the overall category of the law that deals with protection of ideas. And it includes patents, trademarks, copyrights, something called trade secrets, um, rice and publicity, things like that. So it’s a big umbrella from that area of it. Same term for that deals with intangible property got intellectual property. Awesome. Thank you very much. Yeah. You’re welcome. And one last thing I’d say though, too, about the, um, um, the book is that if you, you do mention the show so that I know cuz I extend here. Yeah. And then also, so this way I could either turn around and tell these guys like, Hey, you guys have a lot of listeners. They’re really inquiring, you know, what a single person ask me about that book. So definitely mention the show when you send the email to a C Goldstein, pc.com.

Curtis (39:15):
Well, awesome. I think, uh, yeah, that’s a good place to stop for now. And then we’ll uh, we’ll dive in more later. So, uh, with that guys make sure to like subscribe, you’re probably either saying this on YouTube or Facebook, so share because, um, there’s a lot of misinformation, not intentional, I would say misinformation, but um, just wrong information when it comes to this area out there. Um, some of the things that I was talking about come from a major course.

Rich (39:44):
Yeah. Well that’s why we like to go to the authority on the

Curtis (39:47):
Subject that we’re discussing. Oh man, that makes this sound and

Rich (39:51):
Official. And then next best thing thing is to ask me, <laugh> you are the authority on the subject.

Curtis (39:57):
Thank you so much for, uh, for tuning in, uh, you know, next time we’ll, uh, not include Danon so that we can go much faster. But, uh, other than that, I’m just kidding. <laugh> uh, thank you guys. We’ll uh, we’ll catch in the next podcast. Audios.

Outro (40:14):
Thanks for listening to innovation and breakthroughs with your host, rich Goldstein. Be sure to click, subscribe, check us out on the web@innovationsandbreakthroughs.com and we’ll see you next time.