When it comes to protecting intellectual property, consider a slight twist of phrase on a popular old AAmco commercial: “You can pay a lawyer now, or pay him and someone else a lot more later.” This could be considered to be the philosophy of the attorneys at Melbourne-based Zies Widerman & Malek Attorneys at Law.
“I can’t tell you how many litigations we have of people who entered into a contract on their own,” said Mark Malek, a patent attorney and managing partner of the firm. “(They don’t) want to pay an attorney three, four or $500 to review a contract and then pay $100,000’s later in litigation … That’s not to say going to an attorney first eliminates litigation. No. But it sure does reduce the likelihood of it.”
Intellectual Property 101
The scope of intellectual property falls under three main categories: patents, copyrights and trademarks. There is also trade dress, which refers to the characteristics or visual appearance of a product, such as the Coca-Cola bottle. Any type of infringement, such as using a logo that looks significantly like that of a well-known company (even if it is to sell a different type of product), could result in a cease and desist letter and possible litigation.
This demonstrates why it is important to protect your intellectual property – to prevent others from stealing your idea and making a profit off of it. According to Malek, the value in patents is “the right to tell other people, ‘This is my space. You can’t come into this space because I have protection from the U.S. Government.’”
Malek added, “It has to be novel, brand new, and it can’t be obvious. In the patent world that means, (if) I take someone’s Invention A and their Invention B – and they’re related – and combine those exact things, would I come to your invention? That would be obvious. It’s difficult to show obviousness, but it’s out there.” However, just having the idea for a product does not make a patent. Believe it or not, patent requests are filed every day at Zies Widerman & Malek.
Doing Your Research
Of course, there are some things a hopeful inventor can do before going to an attorney. Researching your invention online to see if a similar patent has already been issued might answer your own question before you ever need to hire an attorney. A rule of thumb: Whatever you do, don’t assume that what you created hasn’t already been created by someone else. While research can be vital and save you a few dollars, submitting your patent or trademark request before consulting with an attorney is hardly the smartest choice. They can provide you with vital information regarding patents, so that you’re not asking them to explain what was on the form you already signed.
If you look deeper, you’ll find that close to nine million patents have been issued, making it very unlikely that all have made it to market. “Just because it’s not sold at Lowe’s or Home Depot doesn’t mean someone hasn’t filed a patent on it but never got it to market,” Malek said. “They could be waiting for you to get to market and just nail you.”
Consulting the Experts
Mark Warzecha, who specializes in copyrights, trademarks, intellectual property litigation and licensing for Zies Widerman & Malek, gives potential business owners advice and peace of mind to save them time and money in the long-run. When clients come to him with an idea or business name, he does trademark searches to determine if they have the sole rights to it.
When the client tells Warzecha they don’t want to spend a few hundred dollars to do the comprehensive search, he has a simple answer for them: “The No. 1 asset your company has right now is this name. If a year from now, you spend X amount of dollars promoting that name for a year, and then you find out someone down the road has superior rights to you, guess what? You just lost all that money, and you’ve got to start all over again. And you may have already labeled a half-a-million dollars worth of products with that. You’ve already promoted the other guy’s company.”
The firm, which celebrated its 10th anniversary last October, has 13 lawyers who specialize in intellectual property areas along with other areas such as construction law, real estate law and trade secrets. Recently, they added attorney Scott Dixon to practice estate planning. Areas of divorce, or even handling a DUI, are not their thing; they are very specialized attorneys.
Surprisingly, many of the firm’s patent attorneys didn’t start in the legal field, and they believe they’re better for it. “This is what we do,” Malek said. “This is all we do. It’s very specialized patent attorneys that have to have a science background. Most of all of us in this office on the patent side are engineers. I was a civil and environmental engineer. Many of us are second career. Patent law is what we did after engineering.”
“We’re very cognizant that, in this economy, people want to put every dollar they have toward their end product, to producing product, to generating income,” Warzecha added. “But protection of your intellectual property assets is producing products and income, and people don’t seem to grasp that. Doing your research, doing the groundwork, securing your intellectual property assets, that’s really putting money to your bottom line.”