Dunlap Codding was thrilled to be able to sponsor the event, support the efforts of Emily and Michelle and encourage the efforts of everyone on the steering committee, including:

Seth Spillman     Dirk Keiser     Michael To
Blake Jackson     Justin Briggs     Tyler Smith
Sandip Patel         Jory Burson       Melanie Goodman Keiser
Robert Campbell

IgniteOKC #2 will be in the summer of 2010 and IgniteTulsa #2 (Twitter: @ignitetulsa) will be March 4, 2010 at the Blue Dome Diner in Tulsa, Oklahoma.  The Tulsa folks were a great inspiration to IgniteOKC and we encourage everyone – no matter where they are located in Oklahoma – to travel to Tulsa for IgniteTulsa #2.  You won’t be disappointed!

Emily, as Chair Woman of the event, was interviewed by NewsOK and gave a fantastic overview of the Ignite event:

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Last week was the first Ignite Tulsa event and our own Emily Campbell dove into the fray with a talk entitled “How Not to be Waldo: Brands that Stand Out in a Crowd.”  I may be a bit biased – but she rocked it!

Emily’s mantra of “Be Weird, Be Different and Think Outside the Box” is a great way of thinking about your branding efforts and the need to stand out in a crowd.

It is a bit unusual for an attorney to be thinking about branding – Emily may have some additional thoughts on that topic – but, when you think about it – it makes perfect sense.  Trademark attorneys see the process at all stages – conceptualization (doing the clearance searches), design and development (filing intent to use applications), and product launch (filing statements of use), to name but a few.

As we say around here, the job of a good trademark attorney is to take you all the way from the minefield of cluttered competing corporate interests to the end point of bringing everything to a succesful conclusion – a customer buying the product and associating the product with the reputation and messaging you wish to develop.  Dare I say it – taking it from a Mess to Yes™

As you saw on PHOSITA last week, the IgniteOKC folks are working on launching their first event and are looking for volunteers and thought leaders.  The first planning meeting was last night – but there is still room for more help.  Drop Emily Campbell an email if you are interested.

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What is Ignite, you ask?

Ignite is a community intellect exchange – it is an open forum to share your knowledge, learn what others think is cool and socialize. Ignite captures the best of geek culture in a series of five-minute speedy presentations on topics ranging from “The Best Way to Buy a Car” to “Hacking Chocolate.” Imagine that you’re on stage in front of an audience of hundreds of people, doing a five-minute presentation using a slide deck that auto-forwards every 15 seconds, whether you’re ready or not. What would you do? What would you say? Could you stand the pressure?

Wanna find out more?

Click here to find out how some of the smartest minds on the planet dealt with the Ignite five-minute presentation format as Brady Forrest, co-creator of Ignite, highlights a different talk from Ignites all around the world. Some of our favorite presentations…

• Great Designers Steal by Jeff Veen from Ignite San Francisco
• How to Work a Crowd by Alexis Bauer from Ignite Sebastopol (California)

A must watch for any potential presenter…

• How and Why to Give and Ignite Talk by Scott Berkun from Ignite Seattle

Wanna get involved?

There are many jobs that need doing to produce an Ignite. One person can do them all (thought it’s a lot of work), but it’s easier, and more fun, if more people are involved. Dunlap Codding will be hosting a happy hour to organize a leadership committee of people to execute the inaugural event and grow Ignite OKC into a signature metro event. We thought you would be an excellent asset to the team. Know anyone else who would would like to be a part of the Ignite OKC leadership committee? Please feel free to bring them along. Here are some of the jobs that need to be done:

1. Marketing/Promotion/Sponsorship/PR coordinators
2. Venue liason
3. Ignite talk coordinator
4. Ignite talk MC
5. Ignite Contest coordinator
6. Ignite Contest MC
7. Videographer
8. Onsite Help — set up, hand out badges and drink tickets, clean up

When and Where

Please join us Wednesday September 23rd from 5:30 to 7:30 p.m. at Iguana Mexican Grill (Google map) to kick off this exciting initiative for Oklahoma City. Please RSVP to Emily Campbell by e-mail ecampbell@dunlapcodding.com or by phone (405) 607-8600. Hope to see you there!

If you want to see a live local Ignite event in person…

We got scooped!  The folks up in Tulsa got out of the gate first – but we don’t mind.  We needed to have a little cross-state rivalry to get things cooking.  Come join us at IgniteTulsa on September 17 at the Blue Dome Diner.  Don’t wait to make your reservation to attend – space is filling up!

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So, you may or may not have heard – although I find it tough to believe you haven’t heard – but Google received a patent on the familiar search page interface we all know and love. 
It’s been a hot topic on Twitter the last two days – and I would hazard a guess that it is being viewed as akin to Darth Vader doing the Macarena while shopping for sheets.  Or some such nonsense.

From a few of the more “interesting” tweets:

tompolk: Who’s on crack in the patent office? Google Patents World’s Simplest Home Page http://ow.ly/nZqN

estauthamer: Is Google or the US patent Office getting nuts???? Patent on 2 button search interface http://bit.ly/39SDjq

yelvington: Don’t de-crapify your homepage. Google has a patent on that.http://tinyurl.com/kro7ol

patrics: Patent on Google Homepage?! Not Funny! http://ow.ly/nYmm #software#patents

ratkat: @stevelitchfield I think it is a bit scary that even such an iconic design asgoogle’s home page should be granted a patent

GyrRaven: Lauren Weinstein’s Blog: Will Google’s "Home Page" Patent Embolden Patent Abuse? http://ow.ly/nY2p

So – do you hear the sound of the apocalypse coming? Patent abuse!  Patent abuse! (Are they talking about the intellectual property right or about not cleaning your leather shoes?)

Well, it doesn’t surprise me that PHOSITA readers are probably not too concerned about the issuance of Design Patent No. D599,372 (PDF) because you are well aware that it is a design patent and not a utility patent.  It is only one word, I know – but that one word makes a tremendous amount of difference.  A difference that is obviously lost on the twits above.

A utility patent protects the functional expression of an idea while a design patent protects the ornamental design of a functional product.  A design patent does not protect the functional aspects of the product itself – rather, it protects how the product is decorated and/or designed. 

Google cannot keep anyone from “de-crapifying” their website (e.g., the functional aspects of a product) – it can merely keep you from “de-crapifying” your website in a manner in which embodies the patented design or any colorable imitation.  It is kind of like a trademark – you can’t look like Google’s ornamental design – but you can still “de-crapify” your website and/or create a better search engine.  (I wonder how high I will rank in Google now for the term “de-crapifying”?)

As such, the scope of protection afforded a design patent is much more limited in nature, scope and breadth than a utility patent.  And it only lasts for 14 years.

So – to the twits (or is it twitts?) – CHILL OUT.  The world is not ending, the system is not spinning off the rails – Google was granted a property right in the ornamental design of its unique website.

Furthermore, why shouldn’t Google be allowed to protect it’s unique design? 

From a cursory review of the history of the page – at the time (and up to this day) many people thought the design was (1) dumb, (2) two simplistic, (3) moronic, (4) genius… no one thought it was “done before” – i.e., it was novel – no one or only very few designers were taking the simple and clean route Google took at the time.  It stands out in a crowd and has become a very important symbol of Google – i.e., something that they would want to protect and keep people from copying.

It also protects the user – if you see the interface, you know it is Google – and not some porn site or spammer.

I know it is the hip cool thing right now to “fight the man” – with the “man” being the patent system, but I really wish people would take a few minutes to actually figure out what occurred and what it means.  It would save you a lot of wasted “outrage” and tweeting.  There are abuses of the patent system – Google getting a design patent is not one of them.

Then again – what would patent attorneys do with their evenings if they didn’t have to correct the record?

/snark  (End of snark for those of you “not in the know”)

Image by Turbojoe on Flickr Creative Commons

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“Hey Emily!  What are you up to next Tuesday?  Let me tell you – I just signed you up to attend a marketing presentation.  It will be a good experience for you and you may pick up a few tips on branding.” 

Little did I know but the President of our firm signed me up to attend a marketing presentation conducted by a local news station at a nearby hotel.  Sounds interesting.  I’m game for learning new things.

I arrived only to be greeted by an account executive, a woman who shall remain nameless, that claimed she “researched” our “company” before the event “but couldn’t seem to remember what our website said.”  Since she obviously did not read our website, she will likely not read this article nor be ashamed that I am now revealing this information about her.  “What is a codding?” she asked.  I just chuckled.  Not a great way to start a sales pitch — Ay yay yay.

This account executive was whisked away to attend to another guest.  Although everyone else in the room was paired with another account executive, I was now left alone.  I was then approached by another account executive – AE #2, but who’s keeping track?  He started to lay the sales tactics on thick, explaining the marketing program to me and the wonderful opportunities television advertising could offer to our firm.

Luckily, after a few minutes, we were directed to a second room where a presentation was about to begin.  (At this point I had an eerie flashback to sorority rush – is there a skit about to take place?)  A third, yes third, account executive introduces himself to me.  We sit down to watch a video presentation about television marketing. 

After the video presentation, a PowerPoint presentation begins.  The speaker talks about how television marketing can raise consumer awareness of your brand.  I perked up when he flashed a bunch of trademarks up on the screen.  Sadly though, he lost me when he started to explain brands as generic source identifiers. 

“What is this?” he said as he pointed to a picture of some cell phones and MP3 players.  “iPhones and iPods” someone said.  “When your little one gets a ‘boo-boo,’ what do they ask for?” he asked.  “A Band-Aid.”  “Exactly,” he says, “they don’t ask for a self-adhesive strip, they ask for a Band-Aid.” 

I spent the next five minutes explaining to my third account executive that local television advertising is probably not the appropriate avenue to advertise our law firm’s services.  Once he got the hint that I was not prepared to sign on the dotted line, we spent the next ten minutes or so discussing the dichotomy between brand awareness and single-source brand awareness. 

There is an unfortunate disconnect between marketing and legal (particularly trademark) departments.  This was evident in the presentation I had just witnessed.  During the presentation, the speaker genericised each trademark he discussed, referring to all MP3 players as “iPods” and all self-adhesive strips as “Band-Aids.” 

I think Johnson & Johnson’s trademark attorneys would have groaned when the presenter referred to their products as Band-Aids, rather than Band-Aid® brand adhesive bandages.  Has all their hard work been ignored?  What about their catchy theme song?  “I am stuck on Band-Aid® Brand cause Band-Aid®’s stuck on me.” 

I asked the third account executive if he understood that trademark rights could be completely lost if a brand becomes generic.  Brands like Aspirin, Escalator, and Trampoline are a few examples of things that were once brands but are now simply generic terms for acetylsalicylic acid, moving staircases, and rebound tumblers. 

From a trademark perspective, while we would like for people to be aware of brands, what’s equally as important is that people know that the brand represents a single source and not a generic line of products.  We want people to think of only one source or one company when they think of Band-Aid® brand adhesive bandages.  We want people to know that the brand of self-adhesive bandages that they can trust is Band-Aid® brand adhesive bandages because the brand stands for quality and consistency.  When you buy Band-Aid® brand adhesive bandages, you know that it will protect your little-one’s boo-boos.

“So how can we do this,” the third account executive asked. “How can we raise consumer awareness while at the same time, point to only one source of those products?”

Start with making sure that the company itself is properly using the brand.  There are few rules for proper trademark usage that should be shared with the advertising and marketing department so that everyone is on the same page. 

Rule number one — never use a trademark as a noun and stay vigilant in keeping others from using your mark as a noun.  For example, The Lego Company warns users against using the term LEGO® as a noun – if you enter the term “legos” into a search engine, the following statement would appear:

Using a trademark as a noun is a sure-fire way to transform your brand into a generic term for a particular type of product.  Consider the following – “My kids love to play with LEGOS.”  In the first example, the speaker could be referring to store bought bricks, The Original Toy CompanyTM bricks, Playskool® bricks, or LEGO® bricks since the speaker is using the term LEGOS to mean bricks.  To use the brand properly, the brand should be used as an adjective.  For example, the following would be appropriate – “My kids love to play with LEGO bricks.”

Another strategy companies can use to protect their brand names is to monitor and manage external usage of the mark.  You should educate the media about proper usage of your company’s brands and also send reminder letters and, in some cases, cease and desist letters to third parties who are incorrectly using your marks. 

If you find that someone is potentially infringing upon your company’s brands, you should perform some level of due diligence to protect what is, in many cases, a company’s most valuable asset – it’s reputation.

So, what did a trademark attorney attending a “sales dog and pony show” learn – well, raising awareness of your brand is one thing, but making sure that consumers associate that brand with only one source of products is another.  After all, what we don’t want, is for people to see our brand and think of a generic line of products.  We want our advertising to encourage people to buy our product, not just any product. 

Oh, and if you are still wondering what a Codding is, please check out our firm website at www.dunlapcodding.com.   

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The evolution of the Pepsi logo over time doesn’t strike me as coming from a place of strength – whereas the Coca-Cola logo appears to be timeless.

The red scripted colors cause an obvious problem with the Coca-Cola logo and the bottle cap visual dates the logo to a particular technology that has been long discarded.

Beyond the simple curiosity factor – this is a great example of spending time choosing a name, logo, colors etc. that don’t tie your brand to a particular technology, place in time, etc.  

Getting from the “mess to yes” is a complicated task – but when it is executed correctly – the outcome should be timeless.

I must admit that the 1973 Pepsi logo made me recall spending summer evenings at the lake with my family…

So the question is — Does a “good” brand evolve over time or is it something that has “it” at the moment of conception. Just a little something fun for the dog days of summer.

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Gene Quinn, at IPWatchdog.com, points to a letter sent to President Obama (PDF) from over 130 manufacturing companies located in the United States urging the administration to shelve patent reform.  In the letter, the parties clearly articulate their concerns about patent reform “proposals” that have been floated and the perceived consequences to manufacturing employment and competitiveness.

While there is some ambiguity out there about President Obama’s plans and priorities regarding patent reform (although, he did mention the awful “gold plated” scenario) – I think it is probably too early to read tea leaves.

Labor unions and traditional Democratic labor groups backed the campaign and election efforts in unprecedented ways and they will have a significant voice and influence at the negotiating table – a position that may have been somewhat discounted in the previous administration.  Considering labor’s opposition to patent reform in 2007, President Obama’s “perceived” willingness to push patent reform should not be taken for granted by his high technology/software supporters.

It appears that the manufacturing letter may be the first salvo to remind President Obama of the strength of support he received from labor and the manufacturing sectors.  I would predict that similar letters in support of patent reform will be forthcoming from the Coalition of Anti-Patent This and Coalition of Anti-Patent That. (Did that last sentence tip off my personal opinion of the matter?)

One question I do have – does anyone really think these letters are useful?  My guess is that 5-10 letters written by constituents are more important to the vast majority of members of Congress than a form letter signed on by a couple hundred interested parties.  But then again, I am a fan of “Mr. Smith Goes to Washington.”

Who will have the administration’s ear?  My best guess – no one.  In the face of the overwhelming challenges facing the country this year and the relatively low profile of patent reform, I would bet that patent reform is dead for serious consideration in the 111th Congress.  If I am wrong – I’ll buy you a beer if you ask.  Catch is – you have to come to Oklahoma City to collect.

Turning away from WAGs, Gene does an excellent job excerpting the manufacturers’ concerns and the jostling for position that the different patent reform stakeholders are engaged.  Highlights include:

• “A recent study focusing on the impact of apportionment legislation estimates that this change alone would put at risk up to 298,000 manufacturing jobs and reduce R&D investment by up to $66 billion.  This would be a negative outcome even when our economy is strong; at a time of economic crisis, it would be tragic.” 
   
• “We feel strongly that the prosperity of a few companies within two industries should not come at the expense of a larger group of stakeholders.”  
   
• “[T]here is no explosion in patent litigation. In 1993, lawsuits were 1.45% of patents granted. In 2007, lawsuits were 1.48% of patents granted. The number fluctuates from year to year, but it has never indicated a system out of control. (Source: USPTO Annual Reports, Federal Judicial Statistics)”  
   
• “[T]here is no explosion in patent damage awards. Adjusting for inflation, the median annual patent damages award has actually dropped slightly over the last 13 years. In constant dollars, the median was $3.9 million from 1995 through 2000, and $3.8 million from 2001 through 2007. (Source: 2008 Patent Litigation Study, PriceWaterhouseCoopers.)” 
   
• “It is crucial to remember that patent damages are imposed only after patent validity and infringement are determined on the merits. In other words, those paying damages have been found to have unlawfully used intellectual property belonging to someone else.”  
   
• “It would be a terrible mistake to allow the increase in patent applications to become an excuse to undermine patent protections. Rather, Congress should take advantage of Americans’ growing desire to invent by ensuring that the U.S. Patent and Trademark Office (”USPTO”) has the resources and management to handle the increased number of applications in a thorough and timely manner.”  
   
• “The legislation introduced in the 110th Congress dealt with patent issues on the back end rather than the front end, i.e., it attempted to deal with the symptoms of poor patent quality and growing pendency rather than addressing these issues directly. Many of the problems identified by legislative reform proponents as reasons for such reforms are best addressed instead by reforms of USPTO operations.” 
   

A few other patent blogs have taken a stab at the proverbial crystal ball gazing as to President Obama’s intentions – Patent Baristas, Patently-O, and PatentHawk, for example.  One, two, many, none, or all of us may be wrong/right. 

What do you think?  I would love to hear your thoughts/comments.

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Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.  I also receive a large number of requests asking for advice on how to “copyright an idea” – so, I thought it would be helpful to lay out a short and concise explanation of each area of intellectual property law.

First, what do I mean by the term “intellectual property”?  According to Tech Terms Online:

“Intellectual property refers to the ownership of intangible and non-physical goods.  …  Since intellectual property is intangible, it is more difficult to protect than other types of property.”

While this is a fairly reasonable definition, I prefer to use a more shorthand version: “Intellectual property is something that is created by the mind.”  Typically, we think of ideas as being created by the mind – but intellectual property does not protect bare ideas: rather, it is the expression or symbolic power/recognizability of the ideas that are protected. 

Thus, it is the design of the rocket that is patented, not the idea of a rocket.  It is the painting of the lake that is copyrighted, not the idea of a lake.  And it is the consumer recognizable logo that is trademarked, not the idea of a logo.  Intellectual property protects how we express and identify ideas in concrete ways – not the idea itself.

In particular:

• Patents: protect functional expressions of an idea – not the idea itself.  A machines, method/process, manufacture, compositions of matter, and improvements of any of these items can be patented.  Thus, I can patent a design for the nozzle on a rocket, or the method of making the rocket, or the method of making the rocket fuel, or the metal in which the rocket fuel is stored, or a new way of transporting the rocket fuel to the rocket.  But I cannot patent the broad “idea” of a rocket.
   
• Copyrights: protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e., paintings, photographs, sculpture, writings, software, etc.   A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of the idea of a secret agent (i.e., a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).  
   
• Trademarks: protect any symbol that indicates the source or origin of the goods or services to which it is affixed.  While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate.  The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing. 

While each category is distinct, a product (or components/aspects of a product) may fall into one or more of the categories.  For example, software can be protected by both patents and copyrights.  The copyright would protect the artistic expression of the idea – i.e., the code itself – while the patent would protect the functional expression of the idea – e.g., using a single click to purchase a book online.  Likewise, it is likely that the software company will use a trademark to indicate who made the software. 

An additional example would be a logo for a company.  The logo may serve as a trademark indicating that all products affixed with the logo are from the same source.  The creative and artistic aspects of the logo may also be protected by a copyright. 

The complexity of intellectual property protection increases exponentially during the life cycle of innovation, research, product development, etc.  A single product may contain, for example, more than one patentable feature, one or more creative or artistic expressions that may be protected by copyright, and one or more trademarks indicating the source of the product.  All of these points of intellectual property provide an opportunity for protection and/or an opportunity for infringement of a third party’s intellectual property.

So – while it is simple and straightforward (well, mostly) to differentiate between the different aspects of intellectual property, it is a more difficult process to implement a strategic path forward and determine which type(s) of intellectual property protection are appropriate/desirable.

I am sure that PHOSITA readers will quibble, argue and debate me to death on the above-referenced “short hand” guides to intellectual property.  Drop your thoughts/short hand (keep it clean) into the comments.

(Photograph by Halima Ahkdar, used under Creative Commons license.)

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A warm welcome to our new home on the web. As many of you might have figured out, PHOSITA (and her writers at Dunlap Codding) have been a bit busy with various activities and projects these past many months.

Ok – who are we kidding, 2008 has been a very quiet and slow year for PHOSITA. Well, all of that is coming to an end!

As 2008 draws to a close, 2009 is gearing up to be a barnburner of a year for PHOSITA. A new firm name. New PHOSITA authors. Same old PHOSITA attitude and character.

As we announced yesterday, Dunlap Codding has a new managing director – Nicholas D. Rouse – and we “institutionalized” our firm name to honor the two individuals who led us with integrity and passion the past 50 years.

What else is going on in Oklahoma City, Washington, DC (and Austin in near future)? In order to find out – stay tuned.

We wish all of our friends, colleagues and supporters a joyous holiday season and a New Year filled with laughter and health.

See you in 2009!

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“Nick is the perfect person to lead the firm as we expand,” said fellow shareholder Douglas J. Sorocco. “Not only does he have the respect of all our lawyers and staff for his keen and precise legal mind, but he is held in high esteem for his steady and consistent demeanor. Nick’s dedication to excellence in client service makes him an excellent ombudsman on behalf of our firm.”

Nick graduated from the University of Oklahoma in 1987 with a B.S. in Petroleum Engineering, and received his Juris Doctor from the University of Oklahoma in 1990. He is a member and immediate past president of the Intellectual Property Law Section of the Oklahoma Bar Association. Mr. Rouse was admitted to the Oklahoma Bar in 1990 and became registered to practice before the United States Patent and Trademark Office in 1992.

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