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On the morning of February l4, l876, Alexander Graham Bell’s patent application on "Improvements in Telegraphy" was filed in the U.S. Patent Office. A few hours later on the same day a "Caveat" (which at that time was similar to a patent application) was filed by Elisha Gray on a quite similar concept.
On March 7, l876 a patent was issued to Mr. Bell. Both Mr. Bell and Mr. Gray had done development work on their concepts prior to their patent application filing dates, and the issue of priority of inventorship was contested in a number of lawsuits. Mr. Gray may or may not have been the first inventor, but what might have been became irrelevant. Mr. Gray was not able to provide adequate written documentation to prove it to the satisfaction of the courts. The earlier filed patent application held up and became the foundation of what we now know as the Bell (and not the Gray) telephone system. Look at the Bell patent cover page on the right.
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This book is designed for engineers, scientists, general attorneys, inventors, computer programmers, entrepreneurs, authors, industrial and high tech companies, artists or anyone who has an idea and wants to "go for it" or simply make sure it’s protected. It is also for people in a "non-technical" business. For example, most every business will produce advertisements and other copyrightable material, have confidential information that should be protected, will likely have a trademark or trade name to identify their products or business activities, etc.
Some people have the mistaken belief that since patent law is quite specialized, all they need to know about it is that when a patent problem arises, it should be referred to a patent attorney. Right? Wrong!!! - At least partly wrong. In Elisha Gray’s case, his patent problem didn’t come to light until the patent applications were filed and Mr. Bell’s patent issued. What he could have done to solve his problem should have been done years earlier by preparing documentation (properly dated and witnessed) of the conception and development of his invention. Then he might have been able to prove his priority of inventorship.
Patents are part of what we call "intellectual property law" dealing with the protection of new ideas. This includes mainly patents, trademarks, copyrights and trade secrets. Many potential problems in these areas of law do not wear a clear label, such as "patent problem" or "copyright problem". Quite often, by the time the problem is discovered, it is so far advanced that the solution (if there is a solution) can be quite painful. Everyone (both attorneys and non-attorneys) should know a few basic facts about each of these four areas of law.
CAUTION: This book is intended to alert you to problem areas in intellectual property law and to provide you with a basic understanding of some of these problems. Accordingly, You should not rely upon this book to resolve a legal issue of any consequence. Rather, a legal specialist should be consulted and/or further research should be done.
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The concept of preventive law is to: plan ahead to avoid legal problems in the first place; when legal problems do arise, attempt to solve them with the least amount of difficulty. The goal is, as much as possible, to substitute planning for litigation — to make our legal system act more as a facilitator and lubricant for the orderly functioning of society, as opposed to emphasizing it as a catalyst to promote energy draining forensic contests.
One important aspect of preventive law is educating non-lawyers in: being able to identify potential legal problems at an early time; adopting procedures that will avoid legal problems;
knowing when a lawyer should be consulted. Intellectual property law particularly lends itself to the practice of preventive law.
This book is designed to help you to: identify the "red flags" (those danger signals that indicate a potential problem) do some preventive law planning. Many intellectual property problems can be compared to cancer. If you discover them at an early time, sometimes the cure can be quite simple. Other problems are like heart attacks. If you’ve been on a proper "legal fitness program", you have a much better chance of survival. The following two examples, while fictitious, are typical.
EXAMPLE: Acme Manufacturing is accused of patent infringement. The company is already in production and has thousands of dollars committed to a particular design, along with an inventory of parts. The patent attorney examines the design and finds that by making a few small changes in the power drive and in the design of the motor housing, the entire infringement problem could have been avoided. But at this stage the changeover is very costly. If this problem had been identified and diagnosed at an early time, a five minute change on the drawing board could have avoided the whole problem.
EXAMPLE 2: Charlie began manufacturing a new line of crackers under the trademark "CRUNCHISSIMOS". They caught on locally, and he initiated a substantial advertising program to distribute the product nationally. However, before Charlie had adopted this trademark, someone in another part of the United States had been selling crackers under a very similar trademark that he had federally registered. Charlie had to stop using the mark "CRUNCHISSIMOS". All of his advertising money had been wasted. A simple search of federally registered trademarks prior to adopting the trademark would have enabled Charlie to avoid the problem.
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If you don’t read anything else in this book, read at least Chapter I. It presents some of the basic facts and "red flags" of intellectual property law which most everyone, both non-attorneys and attorneys, should know. Chapter I is your basic "survival kit".
Chapter II deals specifically with the question of "I have a new idea. What should I do?". This question is asked so often and is so basic, that I believe it deserves a separate chapter giving a step by step analysis of what should be done.
Chapters III through VI are more in the form of conventional text and deal with the four main areas of intellectual property law (i.e. patents, trademarks, copyrights and trade secrets) in more detail. These chapters are intended to provide information on intellectual property matters which are more commonly of concern to non-attorneys and attorneys who do not specialize in intellectual property law.
Some of the EXAMPLES in this book present actual fact situations taken from court decisions. Others are fictitious and are intended to represent typical situations that you are more likely to encounter.
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Bob Hughes graduated from Seattle University with a degree in Civil Engineering and from the University of Washington Law School. He was admitted to the Bar in the State of Washington in l958 and also admitted to practice before the U.S. Patent & Trademark Office in that same year. He was an examiner in the U.S. Patent Office in l957 - 58, worked nine years in the patent departments of two major corporations (General Mills in Minneapolis and the Boeing Company in Seattle), and has been in private practice since l970, continuing to specialize in patents, trademarks, copyrights and trade secrets.
Since l978 he has been promoting and writing about the concept and practice of preventive law. He is the editor of the four volume legal treatise on business preventive law, "Legal Compliance Checkups: Business Clients" published by Clark Boardman Callaghan.
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