BP/G Radio Intellectual Property Podcast

Hope springs eternal in the minds and hearts of budding novelists everywhere that one day . . . they will be published.  And finally the world will know who they are and read their work.  The point at which the product of creativity (and years of toil) intersects with the pushy business of book publishing is a moment of peril.  Many novelists (or musicians) get dazzled by the first deal put before them.  Frankly, getting to the point where someone is offering you any kind of real publishing deal (as opposed to self-publishing contract) is winning a lottery.  But – as David Fulmer, popular author of Chasing the Devil’s Tail and other literary mysteries (www.davidfulmer.com), warns, this is a game, and authors (especially first-time) can lose if they don’t know the business realities of publishing.  The publisher needs to sell books and make money and is not going to look out for the best interests of the author.  By the time you (the author) learn what digital rights or Chinese sub-rights are, it may be too late. 

So why not skip the exercise and just self-publish?  No agents, no publishing contracts.  What could be simpler?  Just print the books or put the book on the internet and let the world read.  David says no way – avoid the “empire of the amateurs.”  Readers look to publishers to get to quality writing and that’s the group you want to be in.  So, develop your craft, be patient, work your tail off and if you get a chance at a deal, fight for the best deal you can get.  Oh yeah, and get a good agent or attorney (better listen to the next episode of bp/g radio).     

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Ponder four scenarios: (a) ocean freighter entering Long Beach with several containers of fake Kate Spades; (b) two companies clashing over priority of trademark rights and one may not have maintained use in commerce; (c) well-financed new enterprise picks a corporate name and discovers a third party has registered the corresponding domain name but is not using it; and (d) company X reviewing company Y’s patent comes across old document suggesting an invalidating public display by Y – did it happen?  These are not uncommon problems, but they require discreet information gathering.  You need an IP PI.   

Digging up dirt on patents, trademarks and copyrights requires creativity, persistence, and intellect.  All the regular investigation practices (and skullduggery) come into play; but add complex technical subject matter, cagey marketing personnel and shady importers.  Who better to speak with on the subject than Ken Taylor, CEO of Marksmen, a leading worldwide IP investigative firm (www.marksmen.com).  Taylor, a former private investigator (and English major) leads us on a quick blast on the why’s and how’s of IP investigations, best investigative practices, and ethical problems (to avoid). 

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What with all the paranoia surrounding In re Bilski (on patentable subject matter) and In re Nujiten (on signal claims) and the demands of certain groups for an end to software patents (see http://endsoftpatents.org), one might think we were on the verge of software patent mortality.  Never mind that software has allowed for 40 years of high-speed technical advances, from trips to the moon to the Human Genome Project.  Perhaps the pace of innovation is frightening to some.  And if we pretend that the software that drives our machines isn’t really much of an invention, we can somehow prevent some Terminator-like future (but we all know who won the War of the Machines).  Maybe it’s the “plague” of software-related patent suits – but does anyone have any data on this?  Has anyone been willing to evaluate those suits simply on their merits rather than make sweeping statements about patentable subject matter or junk patents?  Perhaps policy issues are afoot.  Software development and implementation might be simpler if no one could get a patent on software – but that would be true for any industry. 

Rather than try to solve these issues en masse, we settled for a good conversation with a friend from across the Atlantic, Paul Cole, a chartered patent agent, patent litigator, and law professor from the UK who has written and spoken widely on issues of software patents.  Software patent issues are hot in the UK and EPO right now (see www.bailii.org/ew/cases/EWHC/Patents/2008/518.html), and Paul shares some candid thoughts.  Maybe there’s a middle path?  Fellow M&G colleagues Denise Kettelberger and Rob Kalinsky join the conversation.  Listen in (ignore my efforts to pronounce “cryptanalytic”).

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You are the owner of a website on the humor of Millard Fillmore (www.crazymillardfillmore.com - this is not a real site).  Someone searches on Google for “millard fillmore humor.”  One website.  Website found.  But what if you have a website on printer cartridges.  Get in line.  There are over 3 million sites returned on a Google search for ”printer cartridges” (www.re-inks.com, a real site, came up first today).  How do you get your penniless startup website higher on the search rankings??   Another real scenario: your e-tailer client gets sued for trademark infringement and has to change the domain name it has been using for the last 8 years.  How do you transition to a new site without a catastophic loss of page rank and sales?  You need to know the mysteries of search engine optimization (SEO).  Our guest Peter Quale (see picture), an independent search engine optimizer, tells all: what is SEO, how to move your site up in page rank, and how to recover from a domain name change.  And of course we discuss the underbelly of SEO:  poison words, spamdexing, page cloaking, and link farming and other things you should not do (Peter says so).

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