If You Think It, Do You Own It?

Corrections or additions?

Author: Melinda Sherwood. Published in U.S. 1 Newspaper

on January 5, 2000. All rights reserved.

Survival Guide: for Web Entrepreneurs

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If You Think It, Do You Own It?

Edison had to create a light bulb to get a patent.

Today’s

entrepreneurs might simply try to patent the "light bulb

idea."

Information, as we all know, is a valuable commodity, but only as

valuable as it is protected. Enter the term intellectual property,

the proprietary, patented version of an idea, concept, or method.

In fact, many of today’s business are born on ideas alone. "When

you take an Internet start-up, that’s all they have," says

Richard

Woodbridge, senior partner of Woodbridge & Associates at 112 Nassau

Street (609-924-8864). "And investors want to be given some

comfort."

In terms of the sheer number of patents registered each year, the

Route 1 corridor is second only to Silicon Valley. Earlier this year,

the Philadelphia Inquirer reported that the Princeton and Rutgers

research corridor — an area that covers roughly 50 miles between

Trenton and New Brunswick — ranked as the second most innovative

place in the nation, with roughly one patent to every 120 residents.

Silicon Valley has one patent for every 98 residents.

"The volume of intellectual property requests we have walking

in the door is triple that of what I saw three years ago," say

Woodbridge, who discusses patents, copyrights, non-disclosure

agreements,

and how to protect your Internet site at the Association of Internet

Professionals meeting on Wednesday, January 12, at 6 p.m. at the

Sarnoff

Corporation on Fisher Place. The meeting is free. Call 609-924-8864.

Internet start-ups are the latest in the parade of intellectual

property

clients at Woodbridge & Associates. "Ultimately what they are

doing is trying to hook investors," says Woodbridge. "Since

they don’t have much in the way of tangible assets, they do what they

can to protect their intellectual property so that their investors

are protected."

Patenting a business model or method is still a relatively new

phenomenon;

the patent office only recently accepted the idea of a "Business

Model" patent, one that allows an individual to protect his or

her business concept. "Historically the patent office has not

permitted patents on items like business plans and ways of doing

business,"

says Woodbridge, "but that has loosened up over the years."

It may be looser, but it is also more vague, particularly with the

rapid development of technology. The line between what is proprietary

intellectual property and what is information is not always clear.

In the case of copyright law, the government has said that information

alone does not constitute intellectual property; it must have a

creative

element to it. In the Feist decision, the Supreme Court therefore

ruled that mailing lists and such are not worthy of copyright

protection,

even if it is born from "the sweat of one’s brow."

"Copyrights

are only intended to protect the form of expression," says

Woodbridge.

"It’s not intended to protect things that don’t have a creative

content to it. Plain naked information doesn’t have a creative element

to it."

However, where technology is involved, the lines are blurred even

more. Take Amazon.com’s "one-click" patent, now the object

of a preliminary injunction against Barnes and Noble. "There

appears

to be the beginning of a backlash against these patents," says

Woodbridge. "The theory is that it takes away people’s freedom

to expand on the World Wide Web."

Woodbridge, who likes to "to barge around the Internet and see

what’s going on," believes that the patentability of business

methods, like the patent Amazon holds, doesn’t violate any free market

principles. Just the opposite, he believes. "History has shown

that the patents are an incentive to people to try to improve life

and machines," he says. "Why would anybody bother to do

anything

if they did something and someone could take it right away?"

A native of Princeton, Woodbridge has a BS in electrical engineering

from Princeton, Class of 1965, and earned his JD from George

Washington

University in 1971. He has been in practice in the area since the

1070s, specializing in computers, communications, and software end

of the business. His wife, Karen, is the associate director of state

community affairs at Princeton.

An individual or company that tries to get a patent

for intellectual property may find that it’s not easy, despite new

modifications in the law. It’s expensive, there are rigorous creative

requirements involved, and so many things have already been patented,

says Woodbridge. Only about 15 percent of the people who come into

his office wanting a patent are actually considered eligible. "You

can’t just protect an algorithm — it has to be in a specific

context,"

he says. "You can protect information, but you have to do it in

a clever way."

Woodbridge puts each of his intellectual property clients to the

following

test:

Has the technology been publicly known, sold, or used

for more than a year? If so, it’s not eligible for a patent, says

Woodbridge.

Is there a market for the idea, such that it would be

economically sensible to go through the patent process? "The

patent

process can be expensive, so I ask them where they plan to go with

this," says Woodbridge. "There’s no sense in going through

the process if there’s no return on the investment. Even if the thing

is eminently patentable, if there’s no market for it do you really

want to spend thousands of dollars?"

Once the concept or idea is on paper, sign and date each page

along with two disinterested witnesses, says Woodbridge. Then find

a registered patent attorney (he recommends

http://www.uspto.gov)

who will decide if it nominally meets the standards of patentability.

A patent novelty search — a private search of patent records in

Washington — may reveal that the concept or invention is already

patented. "People take it for granted that just because they

haven’t

seen something it doesn’t exist. But there’s an awful lot there,"

says Woodbridge. "There are about 5.6 million U.S. patents, and

15 to 20 million foreign patents, and probably 80 percent or more

of what’s patented in the U.S. patent office has never been

commercialized."

Although the Supreme Court currently holds that not all information

is patent-ready, that could change. "The federal government has

been considering legislation that might provide copyright protection

for databases, similar to what they presently have in Europe,"

says Woodbridge. "I’m personally not in favor of it, because I’m

not sure what is protectable in a mailing list. I don’t think the

public is especially well-served."

It may not serve the public well, but Woodbridge anticipates that,

as information becomes more of a commodity in the next decade, ideas

and concepts will be carved up into ever smaller propriety pieces.

"What’s going to happen is that the extent to which people are

trying to get protection is going to be focused on more and more

narrow

areas," he says, "because the bigger concepts will already

be in the public domain or already patented."

— Melinda Sherwood


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