iPhone good - AT&T bad

Well, I waited in line at the AT&T office for an hour before they told me what they could have told me when I arrived. They did not have enough phones for the last twenty people in line. I ran over to the Apple store and picked up an 8GB version without any wait. I love it. It is quite cool, even if I do not have a handle on all of the functionality. AT&T is much worse coverage than my old carrier, but the fun of the iPhone tempers the pain a little. More soon!

Brett Trout

Patent Catch-22

I want sell my invention to get a lot of money, but I can not sell my invention until I get a patent, but I can not get a patent until I get a lot of money, but I can not get a lot of money until I sell my invention . . .

As a patent attorney, I go through this thought process with clients all the time. Trust me. If I had a simple solution, I would be the first guy on the block capitalizing on my insight. It is not that there is no solution, it is just "eat less and exercise" is not something everyone wants to hear. Lets go through some of the patent funding options:

1) Get your patent lawyer to draft the application for free and then share in the profits when the invention takes off. This sounds great, but is rarely feasible. To make this work, the invention has to be so incredible that even a patent lawyer could market it. You would likely be talking the top 5% of inventions. If it is that great, funding would likely be easier to find elsewhere on better terms.

2) Pay for the patent yourself. This is a fine option if you have $8500 burning a hole in your pocket, but it still does not solve the problem of how to make that money back.

3) Borrow the money. Savvy investors are likely going to ask that if it is such a great idea, why are you not selling your house to invest in it. If you are not interested, why should they be.

4) Pay an invention promotion company to do all of the heavy lifting. The only heavy lifting this strategy will likely avoid is that it will make your wallet much easier to carry from place to place.

5) File a provisional patent now and file a full patent after you start making money. The problem with provisional patents is that you only get protection for what you include in the application. Even as a patent lawyer it is difficult for me to guess what should be in the patent without drafting the claims. If I have to draft the claims, I might as well file a regular patent, because the cost savings have evaporated.

6) Make money selling the invention and use that money to pay for the patent. This is a very good idea with a few caveats. First, you will lose most of your foreign patent rights by selling the invention before filing for a patent. Second, once you offer it for sale, you have to get a patent on file within twelve months or the invention goes into the public domain.

7) Utilize the Small Business Administration, the Iowa Department of Economic Development, a trusted business advisor or, even better, contact a Business Accelerator, like Mike Colwell's Business Innovation Zone of Central Iowa (BIZ) to get a business plan put together that includes when a patent might be in order.

What is the difference between the first six options and the last one? The first difference is that the last option is going to involve some hard work, some ownership of the business decisions you will have to make and a high probability that you will realize your dream is not viable from a business perspective. The second difference is that the last option is the only one I can strongly recommend in good conscience. It will more likely than not result in me losing a patent I could otherwise have gotten paid for, but I will sleep better at night. Without a strong background in business, selecting one of the first six options is really just investing $8500 in lottery tickets.

If you are really interested in getting a patent, you have to be willing to do what it takes. Generate a business plan. Determine if the invention is viable and make the hard decisions that have to be made. You may decide to get a patent and you may not. The key is that you will have made a sound business decision, rather than an impulsive mistake.

Brett Trout

patent lawyer patent

Funniest Law Blog in the World

Nicole Black of Legal Antics has made it official. BlawgIT is not the Funniest Blawg in the World (at least not in the funny "ha ha" sense). That revered honor goes to Phila Lawyer. Anointing myself arbiter of all things funny, I popped over to Phila Lawyer to cast my disdain on what I was sure would NOT be funny. Much to my chagrin, a quote from Super Troopers hits me square in the melon.

[Enter Trooper Farva, carrying a tray of coffees for his fellow troopers, Rookie Trooper "Rabbit's" containing a large, visible bar of soap]

Rabbit: [dryly] Oh, look, a bar of soap.
Farva: Oh, shit, I got you good, you fucker!
Trooper Mac: *Awesome* prank, Farva.

- Super Troopers (2001)

I doff my chapeau to both Ms. Black and Mr. Blachman and humbly bow my head. You have renewed my faith in lawyerkind. Well done.

Brett Trout

Funny Lawyer Blawg

Blogga Nostra

With the Don of the Blogga Nostra in the hospital, I thought it time to update the Blogga Nostra roster. So, in honor of Don Mike Sansone, here is the most recent list:

* Mike Sansone (Blog Coach)
* Brett Trout (Intellectual Property)
* Rush Nigut (Corporate Law)
* Sandy Renshaw (Blog Design/Build)
* Drew McLellan (Marketing)
* Tom Vander Well (Customer Service)
* Adam Steen (Networking Guru)
* Grant Griffiths (Divorce Law)
* Art Dinkin (Financial Advice)
* Andy Brudtkuhl (Web Design)
* Matt Owen (Cowboy Blogger)
* Joe Kristan (Tax)
* Mitch Matthews (Personal Development)
* Tim Johnson (Project Management)
* Mark True and Cory Garrison (Stories)
* Sherry Borzo (Small Business)
* Claire Celsi (Demo Diva)
* Michael Libbie (Advertising)
* Zane Safrit (Small Business Futurist)
* Brett Rogers (Strategy)
* Mike Wagner (Branding)
* Hannah Steen (Women Owned Businesses)



If I left you out, I promise it was not intentional. Don't be shy. Just let me know your affiliation with the Blogga Nostra and send me a link to your blog and I will be sure to add you to the list.

Brett Trout

Blogga Nostra Mike Sansone Iowa

Blog Scraping and Online Plagiarism

Jonathan Bailey of Plagiarism Today has an interesting post on Blogger taking the offensive against spam. Jonathan had noticed most spam blogs ("splogs") originating with Blogger, but also noticed a precipitous drop in Blogger splogs over the past week. Splogs involve the issues of both plagiarism and copyright infringement.

Plagiarism is the act of presenting someone else's work as your own. Plagiarism also includes the failure to give attribution when you combine someone else's work with your own. Plagiarism is not illegal, just unethical. It will not get you thrown in jail, but it might get you fired or thrown out of school.

Copyright infringement is violating an owner's exclusive right to reproduce or distribute and original work of authorship. Plagiarism is stealing ideas, copyright infringement is stealing one particular aesthetic presentation of an idea. Although copyright does not protect ideas and plagiarism does not forbid properly attributed verbatim copying, there are thefts that involve both plagiarism and copying.

One particularly nefarious type of theft, involving both plagiarism and copyright infringement, is blog scrapping. Blog scrapping involves a splog comprised entirely of content from other blogs. The splog sends a piece of software "the scraper bot" to find text in other blogs containing particularly keywords tied to the splog's paid advertising. The scraper bot returns the text and places some or all of the text on the splog.

Since the scraper bot process is automatic, a company or even an individual can have many splogs with very little management or effort. Because such splogs republish verbatim content without attribution, they are not only committing unethical plagiarism, but are also committing illegal copyright infringement.

Splogs are earning money off of the backs of people creating the original content. Is your blog being scraped? Well Plagiarism Today has some interesting insight and tips regarding scraping that you can use to find out. One particularly useful tool is the uncommon uses feature of Feedburner. This feature lets you know who is using your blog content in hopes that you might help Feedburner put a stop to splogs.

Brett Trout

splogs plagiarism copyright infringement

Who Owns Your Website?

As a copyright lawyer I am often the one to tell new clients “Even though you paid for your website that does not mean you own it.” Because these clients paid money for their website, they think they own things like:

• The design of their website;


• The software code behind their website;


• Their domain name;


• The graphics on their website;


• The other content on their website;


• The terms of use and privacy policies on their websites.

Most clients think they are obtaining an “assignment” of these things when they write a check. They are shocked to learn that the people they paid to create these things actually still own them. Intellectual property laws are designed to protect the creator, to encourage the creator to create. If you hire someone to design a website for you, what you are actually purchasing is a “license” to use the design for the use intended by you and the designer.

What is the difference between a license and an assignment? With a license, you cannot usethe design for something beyond what you originally contemplated with the designer without paying additional money. With a license, you cannot sublicense the design, use it on another website or prevent the designer from licensing the exact same design to your competitor for a small fraction of what you paid.

Similar problems arise with software code, graphics, photos, terms of use policies and other content created by third parties. If you have your employees create these things as part of their job, your company the works are deemed to be “works for hire” and your company is the “author” of the works by law. You do not need an assignment, because the copyright originally vests in your company. Knowing this, seemingly knowledgeable intellectual property attorneys try to apply this theory to independent contractors by contract. The law, however, does not allow these types of website items created by independent contractors to be “works for hire” under the law.

If you want to own all of the rights in the copyright, you need to obtain a written contract, which includes and “assignment.” If you broach this subject with your website developer before you sign any contract, an assignment will often not increase the contract price. If you broach the subject after you have paid, however, the cost of an assignment may be tens of thousands of dollars.

For some items, like terms of use and privacy policies, you may not even need an assignment. You could of course pay an attorney to write a policy from scratch that he or she would never use again. Such “one-off” contracts however, would likely be ten times more expensive than having the attorney merely customize an existing policy they have in their files from which they might obtain some benefit from modifying again in the future. For most legal information on your website a license is typically much more economical than an assignment.

With regard to domain names, be sure that whomever you have register the domain name, that they register it under the name of your company rather than theirs. You might not notice the difference until the time you want to move your website to another host service and your web hosting service refuses to release the domain name they registered to themselves, rather than you.

For third party content, including pictures, graphics and charts you find on the web, it is best to avoid incorporating them into your website, even if you feel they are in the public domain or that the use is a “fair use.” Many companies have had to pay huge royalties for the use of material a third party posted online as public domain without the authorization of the true author.

One final note, keep an updated back-up of everything on your website. It is not worth a dispute with a designer or web hosting company shutting down your website during negotiations. Nothing ensures good
faith negotiations more than having your own copy of your website code.

Brett Trout

copyright cyberlaw lawyer infringement

Brett Trout to Speak at BlogWorld Expo in Las Vegas

It is official. Your humble narrator is speaking at the Blogworld & New Media Expo in Las Vegas. Blogworld has just released a partial list of its fantastic speakers which includes:

Dave Taylor of Ask Dave Taylor
Om Malik of GigaOM
Charlene Li of Forrester's Groundswell
Jory Des Jardins of Pause . . .
Aaron Wall of SEOBook
Paul Dunay of Buzz Marketing for Technology
Jim Kukral of Marketing Ideas Online
Hugh Hewitt of his eponymous blog
Jerome Armstrong of MyDD
Tyler Bleszinski of SB Nation
Maggie Fox of SMG
Jeremy Wright of Ensight
Professor David Perlmutter, author of Blogwars: The New Political Battleground
Podcaster, Speaker & Author Leesa Barnes

Be sure to check out the entire schedule, which includes three full days and over fifty presentations by some of the biggest names in blogging. Hope to see you there!

Brett Trout

blogworld brett trout dave taylor

Is Your Lawyer on YouTube?

No? That might be a good thing according to law firm marketing guru Kevin O'Keefe. According to O'Keefe, Lawrence Lebowitz, vice president of Marketing at the law firm of Cohen & Grigsby found out the hard way that not all publicity is good publicity. Waxing philosophic on the best way to comply with the letter of the immigration law, while circumventing its spirit, Mr. Lebowitz told a roomful of potential clients how to prevent qualified Americans from getting jobs, while at the same time obtaining green cards for foreign workers.

While that kind of talk may go on more often than we would like to think, this particular bit of advice was captured on video and posted online by the law firm itself. After seeing the video, Lou Dobbs and Iowa Senator Chuck Grassley got involved. Cohen & Grigsby wiped the egg from its face and pulled the video, but not before the Programmers Guild, an organization dedicated to higher wages and better working conditions for software programmers, highlighted the most damning excerpts in their own YouTube video.

I understand the need for law firm marketing, but lawyers should be cautioned to observe restraint when it comes to offering advice which so clearly violates the spirit of the law. If you still feel the need to offer such advice, at least tell your audience that most other law firms would not advise you to so openly skirt the spirit of the law. I mean I appreciate your desire for online self-immolation in front of tens of thousands of YouTube fans, but at least have the common decency to offer me a fireproof suit before you light the match.

Brett Trout

YouTube Programmer's Guild Lawyers

Who Owns Your Website?

Think you own these things?

The design of your website;
The software code behind it;
Your domain name;
The graphics;
The content;
The terms of use and privacy policies.

Just because you paid for it does not mean you own it. Check out my new Internet Law post on Iowabiz.com to find out more.

Brett Trout

Invention Promotion Companies - Anatomy of a Scam

Stephen Nipper's Invent Blog has a cautionary tale of a patent attorney reprimanded by the Court of Appeals for the Federal Circuit for assisting an invention promotion company in duping over 1,000 unsuspecting inventors:

"The background of this case reads like a novel but represents the true story of hopes dashed, fees wasted, and dreams lost by hundreds of individual inventors caught up in the world of self-interested promoters who promise the world and deliver very little."

I have written about Invention Promotion Scams in the past and am constantly amazed and saddened every time I hear about more inventors thinking they can save a few dollars with these companies. As with anything, if it sounds too good to be true it probably is. Making money with your invention involves hard work and a lot of luck. If anyone tells you differently, you might want to find yourself a patent attorney you can trust.

Brett Trout

Invention promotion patent scams invention

Rock Music is Now the Establishment

In an interview with Out-Law.com, Blur drummer Dave Rowntree notes:

“DRM [copy protection] was doomed to fail because the people who it was designed to stop, as in the counterfeiters or the mass file sharers or the people doing it for political reasons could easily bypass it [] but the people who were caught in the trap of DRM were the ordinary people who wanted to play their CDs on their computer as well as their CD recorder or who wanted to make a tape of it to put on in the car who were doing things that most people regardless of the law would regard as legitimate activities. ”

Not surprisingly, these are the same copyright concerns I voiced last November on the David Lawrence Show. Near the end of the show I stated the present iTunes DRM strategy simply was not viable and a change would happen within a year. As I predicted, Apple is now offering a non-DRM version of iTunes music and sales are climbing.

States Dave Rowntree “[The music industry has] become very much the establishment…by the time that the industry was starting to fight what they saw as the war against file sharing they really weren’t in anybody’s good books any more, they didn’t have the goodwill of the people whose behaviour they were trying to control.”

Look for more music providers to quickly follow suit or become non-players.

Brett Trout

downloading copyright DRM Apple

Blogga Nostra Soldier Getting Diggs

Blogga Nostra soldier Joe Kristan's blog post Meatheads for Tax Relief is garnering a lot of Diggs today. Check out the post and give Joe a Digg if you can. If you are not familiar with Digg, be sure to check out what is one of the fastest growing tools on the Internet.

Brett Trout

blogga nostra joe kristan iowa debates

Patent Reform Can Get You Killed

My guess is that over the course of your life something invented since 1900 has saved your life. Unfortunately, patent reform threatens to stifle these types of inventions at the start of this new century. Conventional wisdom notwithstanding, existing patent laws fit new technology. I mean that is what they were designed to do.

It is only well-monied interests that would have you believe new technology mandates new patent laws. Proposed patent legislation, such as the Patent Reform Act of 2007 will only make matters worse. Onerous limitations on patents pressure small inventors and competition out of the market, taking with them that next medical or safety breakthrough.

The problem arises when 800lb gorillas assert their will on courts and lawmakers. Every time I walk into court the judge explains to me how much more I, as the patent lawyer, know about patent law than he or she knows. While this may be flattering, I am more often than not immediately chafed when opposing counsel seizes the opportunity to weave the law of patents from whole cloth. Patent lawyers revel in the contrived complexities of the technology and law, fearing Occoam's razor spells the demise of their case. They argue knowing fair-minded application of existing patent laws is anathema to their clients' technology.

Working the other side of the fence, putting lag bolts to lawmakers, is big business. Corporate leviathans have been successful in moving the dreaded Patent Reform Act of 2007 ever closer to becoming the new sheriff in town. The Patent Reform Act of 2007, in its current form assures that even if a small inventor can get the money to go to court, he or she will never win enough money even to cover the costs of the case. If Congress passes the new Patent Reform Act, the best a small inventor can hope for (assuming they can even still get a patent), is a multi-year court battle where, from a financial perspective, even winning means losing.

Knowing the lose-lose proposition the Patent Reform Act poses to small inventors, Big Business will run rough-shod over inventors, wiping them from the landscape. With small inventors out of the picture, Big Business can dial back research and development dollars and just sell us the old technology for more money.

According to Mark Leahey, Executive Director of The Medical Devices Manufacturers Association, the proposed Patent Reform Act, in its current form "would severely undermine investment and innovation in every industry, including medical technology."

So far, this two-pronged attack has been successful in stifling the ability of small inventors to obtain a patent and allowing big businesses to steal patented technology from small inventors. Until small inventors find away to raise the $1.5M it takes to go to court on a patent case, they simply sit back and watch large companies get rich off of the inventors' patented technology. The only hope of reversing this trend is to turn the proposed Patent Reform Act from an anti-inventor law to a pro-inventor law.

Five years from now, when you, or a member of your family is in need of a life-saving medical procedure that is not there, do not say I did not warn you. Check here for more information on the proposed reform and here to see if your representatives in Congress are behind this potentially devastating law. Thank goodness Iowa's Senator Grassley is requesting vetting of the Act before it moves any further. For a link to the letter reflecting Senator Grassley's concerns, check out Peter Zura's 271 blog.

Brett Trout

Patent Reform Act

BlawgIT Makes New Friend at the Register

BlawgIT has made a new friend in Des Moines Register columnist Larry Ballard. Mr. Ballard's most recent WorkBytes column prominently features your humble narrator waxing philosophic on the wonders of all things patent. Mr. Ballard's column also quotes Everyday Edison's producer Michael Cable:

"Everyone either has had an idea for a new product or knows someone who has invented something," executive producer Michael Cable said. "Following through and executing is what trips up most inventors."

Be sure to check out the rest of Larry's column for more on inventors, Ferris Meals and the most humble patent attorney in the world.

Brett Trout

workbytes patent

Expert Advice For Online Businesses

About twenty years ago I saw a Kawasaki Ninja 900 motorcycle and decided it looked like fun. I really had no experience with motorcycles and did not know anyone who had one. But hey, how hard could it be?

So I bought one and set off tooling around town. Of course I bought one of the most powerful street bikes ever made, It was fun, but I could not do any of the things I thought it would enable me to do. I would take a sharp corner and lay it down. The bike would shake and scare me so much at high speeds that I could not take it over 90mph in light colored pants. It was fun, well, probably more scary than fun. I just did not have the right bike, the right protective gear or the right experts to tell me how to use this incredible tool. I sold the bike a year later. In retrospect, I am lucky to be alive.

Now, twenty years later, I am hopefully a little wiser. I still like bikes, but have put aside a little of the hubris that prevented me from asking for expert help when I needed it most. I went and spoke with some licensed expert motorcycle racers I knew. They told me which bike, equipment, training and tracks they thought might work for me. I followed their advice to the letter and hung on every word and recommendation they offered. There would be time enough for experimentation, but without a baseline, I would never be able to tell if my changes were helping or hurting. My expert buddies told me what I was doing wrong, where I could improve and items I could use to go faster and do the things I wanted to do.

I studied, purchased the right equipment and hung on every word of advice they gave me. I took and passed my track license and my amateur racer license. In a little over a year from the time I first rode my new bike, I was on the podium at an amateur sprint bike motorcycle race, placing second in front of many other lighter bikers with bigger bikes and much much more time at the track.

That picture above shows you some of my on-track advisors E.J. Bender and Kevin Kernohan (guru-Randy was just too fast to make the shot) in Calabogie Canada last week. Why can I wear white shorts at 150mph now? I now know what I do well and what I do not. I also know that I do not want to waste time researching an answer an expert has on the tip of their tongue? I have no desire to reinvent the wheel. I have experts at my disposal, why not use them to help jump to the top of the learning curve? This advice applies even more so to companies looking to expand their internet presence.

You can do it yourself, but enlisting the help of internet experts in law, marketing, blogging, capital management, customer service, whatever your company needs to conduct online business. Do not lose that entrepreneurial spark. Just learn the track before you start cracking the throttle open here and there. Let the experts get you on the right track and headed in the right direction. After a few laps, you should have a feel for what you might change to make things flow even better.

Otherwise, you can try it on your own for a while. You still
find people like that at the racetrack. While I have yet to see one of them on
the podium, they do get frequent flier miles from the trackside ambulance team.

Brett Trout

online business experts business

White House Disses Bloggers

CNET News reports that the Bush administration has attacked Congress' proposed Free Flow of Information Act. The proposed law is aimed at extending the reporter's privilege to all types of journalists, including bloggers. The privilege shields journalists from having to reveal their sources.

Some members of Congress are concerned that people attempting to avoid legal action may just throw up a blog and attempt to hide behind a law designed for reporters. According to New York Times columnist William Safire, however, "Whether you're a blogger or whether you're The New York Times or CBS or The Wall Street Journal, if what you are doing is aimed at informing the public, then you're a journalist, whether you get paid for it or not,"

Looks like this may be another case of lawmakers crafting laws covering that which they know little about. For more on the story, visit CNET

Brett Trout

free speech free flow of information act

Blogger Threatened For Criticizing RIAA

According to Boing Boing, a British record executive has threatened Andrew Dubber, a faculty member of the University of Central England. The threat is a result of Dubber posting a story on his personal blog opining that suing music fans for copyright infringement was a bad idea.

Paul Birch, the record executive, who also sits on the boards of the international record industry trade organizations, wrote Dubber a letter threatening to turn Dubber in to the University. Birch argues that Dubber is not allowed to post such opinions while working for a government funded university.

Seems to me that as bad ideas go, threatening bloggers for voicing their opinions makes suing music fans seem like inventing the wheel. I wish there was something I could do to make the RIAA go away, but they do not seem to need my help making that happen.

Brett Trout

RIAA free speech

Business Conference 2007

As you may know, Lawpportunities will be hosting a conference entitled Secrets of Successful Business Professionals Revealed. The conference is for anyone interested in business development and leveraging technology to further their careers. Even if you have absolutely no technical background, this seminar will help you use the skills you already have to grow your business. All you need is the motivation. What will make this conference great is the input we get from you, the audience and the connections you make with the incredible line up of speakers. Rush and I hope to see you on July 20th!

July 20, 2007

8:30AM - 4:00PM
(registration 8:00AM)

$149

Professional Solutions Insurance Services Center
14001 University Avenue | Clive, IA 50325 (map)

New professionals have at their fingertips the tools and ability to make networking better, faster, cheaper and more effective than their predecessors ever could have imagined. LAWpportunities offers you the strategies, insights and secrets of successful professionals, showing you how to fill the gap left by businesses unwilling to adapt.

Network with the speakers and other business professionals including nationally renowned online business entrepreneur KEVIN O’KEEFE of LexBlog.com. Learn the secrets of taking your business and your career to the next level. Topics include:

• Brand Strategy



• New Networking



• Blogging for Business



• Managing Office Politics



• Business Mobility



• Leveraging Technology



• Making Work Fun Again

Speakers:

Kevin O’Keefe
Entrepreneur and blogger extraordinaire O’Keefe is the President and founder of LexBlog of Seattle, Washington, the leading provider of marketing blogs to lawyers and other professional service firms. Prior to forming LexBlog, O’Keefe founded PrairieLaw.com, an online law community for consumers and small business people, sold to LexisNexis in 2001 and now incorporated into lawyers.com. A trial lawyer for 17 years he successfully marketed his own firm in such a positive way that USA Today said, “If O’Keefe isn’t careful, he may wind up giving lawyers a good name.”

Drew McLellan
Drew McLellan gets marketing and branding and he desperately wants you to get it too.  Drew not only has survived 20 years in the advertising industry, he has thrived in it.  A national branding expert, Drew is the Top Dog at McLellan Marketing Group in Des Moines.  Over the years, Drew has lent his expertise to clients like Nabisco, IAMS pet foods, Kraft Foods, Meredith Publishing, John Deere, Iowa Health System, Make-A-Wish, University of Central Florida, SkiDoo and a wide array of others.

Mike Sansone
Mike Sansone is changing how professionals talk with their clients and customers. No one has done more in Central Iowa to evangelize the positive impact blogs can have on your business. Do you wish to connect with clients and customers? Sansone has coached many of the top bloggers throughout the country in techniques and strategies to make connections at levels never seen before by business professionals. His business blog, ConverStations, is one of the most popular in the country with over 900 different links to his blog.


Adam Steen
Networking is a key for every successful professional. A growth capitalist with Transition Capital Management in West Des Moines, Adam teaches professionals how to connect with others on many different levels. He helps small to medium sized companies gain access to key relationships and resources in order to grow and gain value. Adam’s speed networking events in Central Iowa have been a huge success.

Jim Goodman
Jim Goodman is the CEO of Customer Ease and Emerging Growth Group in Des Moines. He is a frequent speaker on business topics and is the host of the Iowa Business Hour. Jim’s program emphasizes the 4 M’s of creating a successful business venture – Money, Management, Marketing and Model. Jim will show professionals how to network with others to achieve success by helping their clients succeed. 

Shirley Poertner
But how often have you - or someone you know - talked all around an issue in a meeting rather than bringing up and discussing "the elephant in the room." The elephant is implicit and considered undiscussable. President of Poertner Consulting Group, Shirley has over 20 years of experience working in private, public and not-for-profit sectors. She is a master trainer of award-winning training programs Crucial Conversations and Crucial Confrontations. She will help us learn how to deal with “the elephant in the room.”

Tre Critelli
Both an English barrister an accomplished United States trial lawyer, Tre takes networking beyond artificial boundaries. Choosing the right mix of professional networking, social networking, blogging, technology and real world connections is what Networking 2.0 is all about. Tre will help you take your career from being the small fish in one big pond to being the big fish in lots and lots of of small ponds. 

Victoria Herring
Bigger isn't always better. Victoria Herring is a successful sole practitioner who practices in the areas of civil rights and discrimination law in Des Moines. She is a believer in cutting-edge technology including the latest Apple technology, Web-based communication and online research. She will lend her expertise in how professionals can start their businesses on a shoe-string and use technology to gain an advantage over the slower moving “big boys.”

Timothy Johnson
Office-politics is a fact of life. Timothy Johnson is an energetic and accomplished speaker, sharing his message on how to manage office-politics. Timothy is the Chief Accomplishment Officers of Carpe Factum and the author of two business management books including his latest, GUST – The “Tale” Wind of Office Politics. He is a contributing writer on Office-Politics and an adjunct professor in the MBA program at Drake University.


Mitch Matthews
Life / Work balance is elusive for all business professionals. One of Mitch’s colleagues said, “When you meet Mitch the first time, you’ll get him instantly. You won’t exactly know why, but you’ll want to know what he had for breakfast: you’ll want whatever he’s got!”  Mitch coaches business executives through his business, A Kick in the Pants. He focuses on life / work balance, goal attainment and career decisions. He also founded a new series of games called “Q” to bring people together for networking and fun.

Register Today!

Make your check payable to LAWpportunities and mail it to:
LAWpportunities
c/o Law Offices of Brett J. Trout, P.C.
516 Walnut Street
Des Moines, IA 50309-4106

Questions?  Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com


Lawpportunities Business Conference Des Moines

Best Lawyer in the World

Iowa native Chris Pirillo, guru of all that is tech, recently blogged on "How do you find a Good Lawyer?" In addition to citing my Best Patent Lawyer in the World post, Chris quoted Myles Alderman:

The yellow pages are NOT a good way to find a lawyer. [] When hiring attorneys that we do not have prior experience with, I prefer to see evidence of solid respect by the lawyers who know that person. One widely recognized peer review rating system is the one provided at www.martindale.com. Generally, we will not recommend lawyers who do not hold at least a BV rating. But remember, the best lawyer in the world may not be right for you, if either he/she can’t give you the time you need or if there is a “disconnect.” Interview the lawyer, ask questions and feel free to not hire a lawyer if it doesn’t feel right.

A comment to Chris' post notes:

If by 2009, the lawyer you are considering to hire does not have an interactive website with a blog, I would urge you to keep searching cuz they’re out there. Webtwo0 (and the people in it) are really transforming the legal arena in so many ways. The lawyers who carry on as if nothing has changed and continue to ignore this shift in the way people (and companies) purchase their legal needs are the the same lawyers who are losing cases. The world’s best lawyers are way ahead of this curve.


What is your attorney's Martindale rating? Does your attorney have a blog? If your attorney is not keeping abreast of how the Internet is changing the legal industry, how well can he or she be monitoring how the Internet is changing your industry?

Brett Trout

Best Lawyer Best Patent Lawyer

XXX Patents - Very NSFW

Who says patent law cannot be exciting. I ran across the X-rated patents website the other day and was positively appalled. Well, not really, but its the kind of thing you have to say to keep up appearances. It was actually like a car wreck - it was very difficult to turn away. Thank goodness I found within me the intestinal fortitude to do so . . . after a half hour. Lucky for you I ran back here and posted the link for you, my faithful readers. You know, so you know which sites to avoid.

Brett Trout

xxx patents x-rated patents

The Best Patent Lawyer in the World (Part Deux)

The best patent lawyer in the world for you and your invention may not be the best patent lawyer in the world for someone else. The kind of invention you have, your budget, your location, your business, your goals in general, all have a bearing on who the best patent lawyer in the world might be for you. In selecting the right patent attorney, keep these top ten considerations close in mind:

10. Research. Google patent lawyers online. Narrow the search using criteria of interest to you. Is your patent mechanical, chemical, biopharmaceutical? Read what you can about prospective patent lawyers. You can get a pretty good flavor of who they are from a blog or book they have authored.

9. Ask around. Recommendations from people who have a business relationship with, or have actually used, a particular patent lawyer are extremely valuable. Recommendations from people who have merely "heard" of a particular patent attorney, however, should probably be taken with a grain of salt. Do not stake your patent on a rumor.

8. Find a patent lawyer with experience actually trying a patent lawsuit. Patent attorneys with litigation experience know courts and juries. The also know how judges and juries view the way patents are written and draft them accordingly.

7. Get a clear idea of the costs involved. Some attorneys only give you an estimate of the costs to file a patent application. Make sure you are comparing apples to apples when comparing costs. While few quality patent attorneys can give you a precise quote of the overall costs, they should be able to give you a ballpark.

6. Select an attorney that fits your style. Even if you select the most expensive patent lawyer on the planet, if he or she has to choose between devoting time between your tiny project and a project he or she has going with an 800 pound gorilla, is your patent going to get the attention it deserves?

5. Interview multiple patent attorneys. Nothing makes me feel better than when a potential client tells me they are going to talk to a few other patent attorneys and then end up coming back to me. I know they feel that I was the best choice and I strive to make them happy with that decision.

4. Investigate some patents the attorney has drafted in the past. Have they only drafted 10? 20? 30? Are they actually listed on the patent as being the attorney of record? Google now has Google Patent Search that makes such investigation a breeze.

3. Choose the patent lawyer, not the firm. Be sure that the attorney you hire will be the one actually drafting your patent. A lot of firms have you meet with a senior partner patent attorney and then shuffle your patent off to an associate looking to cut their drafting teeth. Do not let them practice on your baby.

2. Choose an attorney that himself or herself available to you. Communication is absolutely the most important part of the attorney/client relationship. Can you call the attorney directly? Will they always get back to you within one business day? If a patent lawyer is not willing to make himself or herself available to address your thoughts and concerns, you need a different attorney.

1. Choose a patent lawyer you like. I know this may seem difficult, especially since any patent lawyer is by definition going to be a lawyer, but people really do end up liking their patent attorneys. It is worth a little effort to select an attorney you feel comfortable with and gives you a feeling they not only understand the invention, but appear to have what it takes to be a motivated an effective advocate of your invention before the United States Patent and Trademark Office (USPTO). By the time your patent actually issues, you will have spent at least two, and probably three or more years with this person. Make sure they are not grating on your nerves from the outset.

Good Luck and Happy Patenting!

Brett Trout

Patent Best Lawyer Best Patent Lawyer Patent Lawyer Patent Law

ABC’s of Patent Drafting After KSR v. Teleflex

In its biggest patent decision since eBay v. Mercexchange (limiting the use of injunctions by patentees), the United States Supreme Court refused to end the patent obviousness inquiry at the Federal Circuit’s teaching-suggestion-motivation (TSM) test. Before KSR, the Federal Circuit held that even if all of the elements of a claimed invention were known in the prior art, the invention was not obvious unless there was some teaching, suggestion or motivation in the prior art to combine the elements in the claimed manner. In KSR, the Supreme Court stated that even if a claimed invention passes the TSM test, the United States Patent and Trademark Office (USPTO) may still reject a patent claim using things such as "common sense."

The Board of Patents Appeals and Interferences is now wielding KSR like a broadsword, affirming Examiners 64% of the time. What can you do to be in the other 36%, or better yet, not have to appeal at all, even in the face of KSR? Following these ABC’s is a good place to start.

Anticipate– Do not get caught off guard by KSR. Read the KSR opinion, spend more time discussing inventions and prior art with inventors. Draft patents proactively.

Be more selective in filing patents – Is the invention really mind-blowing? If the invention is not is not a quantum advance over the prior art, you may want to have a frank discussion with your inventor about the USPTO's new stance on obviousness.

Common Sense- The new touchstone overshadowing the old teaching, suggestion motivation (TSM) standard. If the new combination your client created is within the purview of common sense, you may wish to forgo a patent.

Disclose disclose disclose – Do not wait for the USPTO to find prior art for you. Find it. Discuss why it would not be obvious to modify into your claimed invention. Repeat.

Expand your disclosure - What might have been “window dressing” in the past, can now be the difference between getting and not getting a KSR-backed 103 rejection. Write more about the problem, what others have tried and why they have failed at what your client is doing. Point out exactly why the invention is such a boon and addresses such a long felt, yet unfulfilled, need in the industry.

Functionality – add a little functionality in the linking of your claim elements. Nothing differentiates a set of claim elements from the prior art more than a few functional relationships.

Grahamalyze your application – In KSR, the Supreme Court ruled that the factors outlined in Graham v. John Deere Co., 383 U.S. 1 (1966) “continue to define the inquiry that controls [the determination of obviousness].” The Graham factors include: 1) the scope and content of the prior art; 2) the skill level of a person of ordinary skill in the art; 3) the differences between the claimed invention and the prior art’s teachings; and 4) any objective indications of nonobviousness (such as commercial success, long felt, but unresolved needs and the failure of others). Commit these considerations into not only your application, but into all phases of your prosecution.

Good Luck and let me know if you have any tips of your own.

Brett Trout KSR Teleflex patent drafting Federal Circuit Supreme Court

The Biggest Lawsuit You've Never Heard Of

Unless, of course, you read BlawgIT. I posted about the lawsuit,Bragg v. Linden Research, Inc. (Second Life) and Philip Rosedale, last November.

On its face, the case may not seem like much; a lawyer who tried to "game" the game Second Life by buying up virtual real estate before it went on sale to the public. He is now suing Second Life for taking all of his virtual "stuff" after catching on to his shenanigans. What makes this case so important is that it gives us a glimpse of how courts are beginning to view the way we will all contract in the future (at least for most things).

Linden Labs portrays the case as simply revoking the rights of a gamer caught cheating violating the rules and having his privileges revoked pursuant to a standard Terms of Service (TOS) agreement. The problem is that these rules involve real money, and lots of it. If all Second Life gamers rushed the bank, Linden Labs would have to come up with nearly $10 million in real money to pay everyone.

Or, argues attorney Marc Bragg, Second Life might decide to assert its TOS adhesion contract against its users and not pay them anything. That is what happened to Bragg when Linden Labs caught him manipulating Second Life land sales. Bragg argues that this case is about a business taking people's money in the real world in exchange for virtual stuff and then taking the virtual stuff back pursuant to an unfair contract. Bragg is upset that the adhesion contract Linden Labs forces all players to agree to, allows Linden Labs to avoid jurisdiction, mandate expensive arbitration and keep all settlements confidential so no other gamers can discover how to repeat the process on the cheap. By keeping the cost of fighting higher than the amount in question, Linden Labs' TOS agreement basically allows it to commit any transgression it wants with impunity. Or at least so far.

Last Wednesday, however, the United States Court for the Eastern District of Pennsylvania denied Second Life's Linden Labs motions to dismiss for lack of personal jurisdiction and motion to compel arbitration. In denying the motions, the court found that Linden Lab's Terms of Service (TOS) Agreement was a contract of adhesion which:

expressly allow[s] Linden, at its “sole discretion” and based on mere
“suspicion,” to unilaterally freeze a participant’s account,
refuse access to the virtual and real currency contained within
that account, and then confiscate the participant’s virtual
property and real estate. A participant wishing to resolve any
dispute, on the other hand, after having forfeited its interest
in Second Life, must then initiate arbitration in Linden’s place
of business. To initiate arbitration involves advancing fees to
pay for no less than three arbitrators at a cost far greater than
would be involved in litigating in the state or federal court
system. Moreover, under these circumstances, the confidentiality
of the proceedings helps ensure that arbitration itself is fought
on an uneven field by ensuring that, through the accumulation of
experience, Linden becomes an expert in litigating the terms of
the TOS, while plaintiffs remain novices without the benefit of
learning from past precedent.

While you might not see yourself in Bragg's position today, you will be one day, one day soon. The decision by this court as to how much more businesses will be allowed to take advantage of customers online is simply the first of many decisions that will shape your day to day life more than any other area of the law. Don't worry. I will stay on top of it for you.

Brett Trout

Second Life Bragg Internet jurisdiction online contracts