Expert warns of patent law pitfalls at PubTalk

Vancouver attorney says new rules can be confusing

By Gordon Oliver, Columbian business editor

Published:

 

A new federal patent law adds some clarity to rules for protecting new products and intellectual property, but creates a new world of confusion on some issues that could last for years, said Kurt Rylander, a Vancouver patent attorney.

Speaking Wednesday evening at Clark County PubTalk, Rylander offered advice to his small business audience on mistakes to avoid and potential dangers ahead under the “America Invents” patent law that took effect in September. The most common mistake, among the people he sees, is an improper use of nondisclosure agreements that fail to adequately protect products or ideas. He warned against simply pulling nondisclosure forms off the Internet, saying that most people don’t know how to properly fill out and execute the forms.

Other mistakes, he said, are giving up too soon by letting a patent lapse; falling for get-rich promotions; not having a business plan or written corporate agreements; or filing your own patent application. He strongly advised software developers to secure copyright protection, something he said many overlook.

Patent law is full of quirks and political history that creates countless opportunities for anecdotes, and Rylander didn’t shy away from storytelling. While federal law includes provisions for patenting plants, he noted, it inexplicably prevents anyone from obtaining a patent for a potato. (Other items that can’t be patented are nuclear weapons, burglary tools, and perpetual motion machines). Although the patent office wouldn’t approve a patent on ordinary rocks, the creator of the novelty Pet Rock toy was able to patent the toy’s cleverly designed box.

And while intellectual property protections, by law, don’t last forever, Congress has a history of extending copyright time limits at the urging of Walt Disney Co. every time the expiration date draws near for the 1928 movie Steamboat Willie, which introduced Mickey Mouse, Rylander said. These days, only Constitutional purists believe that some copyrights aren’t forever, he mused. What might seem like forever is the time it takes to obtain a patent: Rylander noted that the federal patent office is only now reviewing applications filed in 2008.

The “America Invents” patent law includes confusing provisions, some of which Rylander described as bizarre, that courts will take years sorting out, the attorney said. One improvement, however, is that the law provides a patent based on who files first, not the previous difficult-to-prove standard of “first to invent,” Rylander said. That provision puts the United States in line with the rest of the world, he noted. But the new law also makes it easier for challengers to kill patents, he said.

Sharp-eyed consumers will notice that products no longer have to show a patent number — only a link to a company website that lists the patent number. But only those in the patent game will notice that, along with the new rules, the government raised its fees for obtaining patents.