EP 21 - Rich Goldstein - Product Patents: How they work, the Types and More
|Awesomers Authority - We'll talk to subject matter experts that talk about various topics that would be of interest to other Awesomers who are listening including, but not limited to, starting a business, running a business, best marketing ideas, sourcing in China, organizational development, tools to help your your business more profitably and much more.|
|Rich Goldstein is a patent attorney, entrepreneur, and marketer. |
He works with ecommerce sellers to help them protect their innovative products and also avoid problems when sourcing products they intend to sell.
He is the author of the American Bar Association’s Consumer Guide to Obtaining a Patent.
One of the biggest challenges faced by entrepreneurs is deciding on the patents, trademarks and other protection mechanisms for their business.
On this episode, Steve introduces Richard Goldstein, a patent attorney, entrepreneur and marketer. He is also the author of the American Bar Association's Consumer Guide to Obtaining a Patent. Here are more awesome takeaways on today’s episode:
How Rich works with E-commerce sellers to help them protect their innovative products and avoid problems when sourcing.
The abundance mindset and why he believes in it.
Why relationship is the foundation of accomplishment.
How product patent works, the steps in applying for a patent, the different types of patent and more.
So subscribe to the Awesomers podcast and learn how you too can have patent protection for your business.
Welcome to the Awesomers.com podcast. If you love to learn and if you're motivated to expand your mind and heck if you desire to break through those traditional paradigms and find your own version of success, you are in the right place. Awesomers around the world are on a journey to improve their lives and the lives of those around them. We believe in paying it forward and we fundamentally try to live up to the great Zig Ziglar quote where he said, "You can have everything in your life you want if you help enough other people get what they want." It doesn't matter where you came from. It only matters where you're going. My name is Steve Simonson and I hope that you will join me on this Awesomer journey.
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1:30 (Steve introduces today’s guest, Rich Goldstein.)
Steve: This is Awesomers.com podcast episode number 21 and as always to find show notes and details you can go to Awesomers.com/21, that's Awesomers.com/21. So today my guest is the great Rich Goldstein. Rich is a patent attorney, entrepreneur and a marketer. He would say marketer but I threw in the marketer because it's fun. He works with E-commerce sellers to help them better protect their innovative products as well as helping them avoid problems when sourcing products that they intend to sell. He is the author of the American Bar Association's Consumer Guide to Obtaining a Patent and that's a book I highly recommend for any entrepreneur to give you the basic overview of what the process of getting a patent is all about. We're really lucky to have somebody as smart and as capable as Rich joining us. To talk about the process of finding out about patents, learning if the product we want to sell’s already got a patent on it or even if it has a patent can we still sell, and if so on what conditions. There's so many things related to patents so this is going to be an exciting episode for you to learn lots about patents. Awesomers this is Steve Simonson and we're back on the Awesomers.com podcast today joined by special guest Rich Goldstein. Rich, how are you buddy?
Rich: I'm doing well Steve. How are you?
Steve: Doing great and thrilled to have you on today. And Awesomers, you're in for a treat today because so often we talk about product development and the intellectual property patent and all the headaches that go along with that. And today we're hoping that Rich is gonna give us some insights and clues into that whole world, which is very murky and often scary for people who have never dealt with it. Rich that's kind of your bailiwick right? This is what your specialty isn't it?
Rich: It is. My specialty is patents and trademarks, but also from what you just said too, my specialty is helping people to not have it be so murky. So I really specialize in working with people to gain a better understanding of the IP issues that face them. So that it's not so far, not so strange, not so scary.
Steve: Yes. So I definitely think this is one of the best parts of it. Interfacing with somebody like Rich who knows what he's doing, is specialized in this particular category. Because they can take the pain away right? And isn't that what we all want? We know that when we're dealing with things that are complex or things, maybe we just simply don't understand that's a lot of pain but we can make the pain go away by bringing in it an expert like rich.
Rich: Yes. And we can make the pain away. You could make the pain go away by handing something over to an expert. Let's say like me, he call myself an expert but I guess I am, you are. And so it's great when we can delegate something to someone who can just handle it for us right? But I also like to make the pain go away just by having people understand what they're doing and not feeling the pain of confusion and not knowing what to expect next. So I liked to make the pain go away in that way as well.
Steve: That's such a good point. They say ignorance is bliss but I'll tell you, when I don't know something particularly as it involves the legal stuff it does not feel blissful
Rich: Yes, I never feel blissful.
Steve: And I want it to go away quickly and often I will go to my happy place and curl up in a little ball. So Rich let's take a step back and summarize who you are and what you do from the big picture just so the audience can understand because I know you, I'm kind of glancing over that. Tell us who you're and what you do please.
5:00 (Rich talks about his origin story.)
Rich: Well, who I am I guess and what I do in this realm is, I'm a patent attorney but I'm also a marketer and an entrepreneur and a business coach. So I like to think that I bring that well-roundedness to it when I'm working with other marketers and other entrepreneurs especially e-commerce entrepreneurs. I am a patent attorney but I'm also one of you in that sense. I like to look at things from a practical perspective and not just from the perspective of patent attorney and is this patentable, is this not patentable etc… I have been passionate about educating people about the patent process for the last twenty or so years. I used to do a lot of seminars and I created a series of videos about seven or eight years ago that tens of thousands of people have watched to understand the patent process. And the American Bar Association asked me to write a book to explain to entrepreneurs how patents work so I wrote the ABA consumer guide to obtaining a patent which does just that. And top quote on the back cover there if you look according to Frank Kern it says... and I think many people here probably know Frank Kern is... and says finally a book about patents in plain English and I'm really glad for that because that's what I set out to do when I wrote the book.
Steve: That is a great accomplishment and we're definitely going to talk a little bit about how that book came about, how people can apply it and really try to help people unlock this Rubik's Cube of patents. And how it fits in with a typical ecommerce entrepreneur. I think that's something that people still struggle with. In just a moment, we need to take a quick break but when we come back we're gonna dive into just a quick bit of Rich's origin story. Where he came from and learn a little bit about that and we'll do that right after this.
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Steve: Okay we're back again Awesomers were visiting today with Rich Goldstein and he's talking to us a little bit about his expertise in patent law and so forth. We're gonna dive into some of those details because he's certainly an authority in that subject matter, but I always like to start from the beginning. Rich where were you born? Where did you come from?
8:24 (Rich talks about his birth place and where did he come from.)
Rich: Oh I was born in Staten Island, New York.
Steve: Boy the accent would never give that away.
Rich: Through speech therapy I've managed to eliminate 95% of my accent.
Steve: 95% because the west seas can pick it up strong. I love it. By the way when I greeted Rich Awesomers out there this morning. When I greet him on our call I said how you doing? Because I like to fit in and so there you go. How about your parents Rich? What's their background?
8:55 (Rich talks about his parents.)
Rich: So my parents were both born in Brooklyn New York and my father is an engineer. He was a mechanical engineer worked for the city of New York for his entire career, designing the heating, ventilating and air-conditioning systems for the various city buildings, the court buildings etc… And funny thing, since you asked about my parents and my background like that. My dad would explain anything to... probably painful detail. Any question I ask there's a three-year-old child asking about something and he'd explain to me what relative humidity is and so I think that's a very important part of my upbringing. As a matter of fact one of the favorite stories about me when I was about two years old. They said to me; “Richard you're diapers wet” and my answer to them was; “it must be condensation”. It just has to make you wonder how the type of conversations I was having with my dad that it would occurred to me like moisture condensation. But that came from having an engineer dad and I guess him just explaining everything in my environment around to me to such detail.
Steve: Well I love that and for those Awesomers keeping score at home if you want to measure relative humidity and a do-it-yourself environment go find yourself a sling psychrometer. You ever heard that on a podcast yet today. So let's fast forward, so it sounds like you went to school because a lot of attorneys have done that. Tell us more about it.
Rich: I did. I went to a pre-engineering high school and I studied Electrical Engineering in college and around the same time that I started college, I also started a business. I was selling salon supplies to beauty and manicuring salons in the area where my university was Stony Brook University. I really gained an interest in business and at the same time I found out that the reality of becoming an engineer would be that I'd be working on the same project day in and day out for maybe five years at a time. Where they give you one little piece of some big system and they say here design what goes between A and B and then that's what you do for five years. And that didn't seem interesting to me enough and with my interest in business I thought I would change my major and not continue studying engineering. But then I heard about patent law which is where you need to be an engineer and also a lawyer. And so I finished with Electrical Engineering and I had some fun doing that believe it or not. Then I went to law school and once I became a patent lawyer, I then got to work on different things every day so I get to apply that engineering knowledge, because you need to have it in order to understand technology and understand how things are different from other things and explain those differences. But I get to work on something different every day. So it was really a fulfillment of that experience when I was in college of knowing that I wanted to be working on different projects and not to be kind of stuck in a rot and so it was really great the way that worked out.
Steve: That's a fascinating solution to the problem. So I didn't realize the full engineering background in degree even though we've probably been running around and in various masterminds and circles for the last couple years. I didn't remember that part of the story if you've told me. But what a perfect applicability to patent law. I mean, it solves the exact problem of not having to deal with the same thing every day for five years because you get new stuff every day. Right? And yet you get to apply that brilliant engineering in a real practical setting. Wow, good on you mate. That's so good. It worked out well.
Rich: When I graduated law school I started my own firm so I got to fulfill on that entrepreneurial side of me as well and just a cool little thing that happened alongside of that is. As I was graduating law school and I decided I was going to start my own firm, I realized that I was going to need clients. Most of the time when people start their own firms it's because they were first working at a big firm and they were working for big clients and so when they decided to leave, they were able to take some of that work with them. But in my case, I was starting from scratch. So what I did is, I founded a magazine for inventors. So I launched a magazine that had all types of articles about inventing and patenting and prototyping, and I sought to have that distributed in different ways that invention shows and at the Patent libraries around the country. And basically, so what I did is I got a whole bunch of content out there and I was prominently branded within the magazine. So I generated interest from myself as a patent attorney. So basically I was doing content marketing in the mid 90s before there was even such a thing.
Steve: That is a fascinating way to solve the problem right. So did you ever read the book Guerrilla Marketing back in that timeframe?
Rich: I didn't.
Steve: Yes Guerrilla Marketing would have shared that really advanced concept if something doesn't exist right? If you have to create your market out of thin air you just go solve for X and you did that by literally creating a magazine and putting it in front of your target audience and obviously you being the authority in that particular setting. You were the magazine publisher and probably the lead advertiser. I'm suspecting that got you a lot of credibility and potentially a really clever way to get started again. Your problem solving techniques are quite ingenious. I like that.
Rich: Thank you. And there's more to the story too, maybe we'll talk about it on another podcast. As if there's a way in which I leverage that and the magazine to create other opportunities as well.
Steve: So tell. Yes, let's let's dive into that because we lie love the intersection of entrepreneurial with the legal piece because that's truly unique. And for the Awesomers listening at home, as we stand by for more of Rich’s story. We should remember that it's not common for attorneys to have the entrepreneurial business perspective. It exists, it happens and Rich is a perfect example of it. I have fleets of lawyers who specialize in everything from customs to China to obviously patent advanced patent litigation which we use a different resource or startup patents and any kind of a patent research would be a good resource for to take a look at a project and so on and so forth so there's lots and lots of attorneys. And it's rare to have the really good combination of practical business and entrepreneurial insight plus the legal piece. So I love that. So tell me how did you leverage the magazine?
Rich: So first of all, through the magazine I began to get contacted by various other entities that saw what I was doing. So for example I was contacted by The Invention Convention out of Pasadena and they invited us to come out. That I was contacted by the Learning Annex in New York City because they had an invention course but their instructor suddenly wasn't available. They needed someone to fill in and through the combination of a few of those items I ended up teaching a course on inventions in New York for the Learning Annex. And then later when I branched out to other cities I contacted those learning annexes and told them what I was doing in New York City and so I ended up doing that same course in Los Angeles and in San Francisco. And then through that, Invention Convention contact that led to just a whole host of other opportunities that came about. So it's just like a having an end into an industry where I was nobody and then all of a sudden I had friends and colleagues and other people that were able to refer work to me and to provide opportunities for me, to speak or to be involved in collaborative projects. So it just grew upon itself.
Steve: It's a really good example of taking that. I'd like to refer to that Zig Ziglar quote it's probably been including the top of this show, which is “You can have everything you want your life, if you help enough other people get what they want” and ultimately you are producing that magazine and you're teaching those classes to help other people get what they want and then the unexpected. You didn't do it and say I have to. You have to give me something in return but the unexpected outcome is that people end up seeking you out and and leveraging your own expertise.
Rich: That's the only way that it could work Steve. I mean it's like when you go out there and you contribute and you don't expect anything in return. First of all that's real contribution. That's not looking for tit-for-tat, where I'm doing something in order for something else to happen, but it's also an abundance mindset. I mean abundance mindset is all about, well it's the antithesis of scarcity. Scarcity, meaning that there just isn't enough to go around and I have to be careful of what I do and what I give because I might lose out. And we can't all win. If I gain something, that means you must losing something or if you gain something, it might cost me something. With abundance it's not really about a lot. It's not about the notion of this plan that there's a big quantity. it's about the non issue of how much there. It just doesn't matter. I go out there and do my thing and I can just trust in the fact that it's gonna come back to me. And I don't have to watch for how it's gonna come back to me because I'm trusting that it's going to and to me that's something which not only really works in the business world, they come from abundance but it also was a lot more peaceful than being in scarcity.
Steve: That is so right. So I quite agree with you and that is certain part of the AWESOMER mindset too. to know that we live in a world of abundance and it's not if I get something somebody else doesn't get something or vice versa. But just this very idea that your mind doesn't have to work as hard to be scared all the time. Right? And that is a huge huge thing. So well.
Rich: That's exactly it is. It's the notion that you don't have to work at it. You don't have to work at keeping it going and making sure that you don't end up on the street because you haven't been watching how it's coming back to you.
Steve: Yes, I just think that that's such a good insight. And I hope folks out there taking careful notes and paying particular attention to this as a side note. We will have the show notes available for this episode. I believe this episode number 21 so you can go to Awesomers.com/21 to find the show notes and links to Rich's firm and maybe some of the other things that we talked about during the episode. Rich as you once got into it and you started getting into the ideas, I'm just wondering if there's a day that maybe you looked back at and said this was a pretty good day. Like it was there any just moment where you looked and said I've arrived you know it put that in quotes.
Rich: Well I could think of a bunch of different examples of that and I guess it depends on what I mean by arrive. But in the early days of my career I played a pretty big game and I think... let's see I graduated law school in 94 and by the middle of 95 I had opened an office in LA in a townhouse right of the Sunset Strip. And we had a hot tub craned into the roof and I remember sitting in the hot tub there looking out at all the traffic on the Sunset Strip, people go to the House of Blues, go into back. Then it was the Roxbury or the Roxy, I forgot the Roxbury, I think Barry back then.
Steve: By the way, I've been to that House of Blues right there on Sunset. Nice.
Rich: Yes, it was a great era and I really enjoyed it back then. I was in my 20s and so I was up in my hot tub on the roof there and I said to myself; “You know what? There's no one graduated from law school who's doing anything like this right now”.
Steve: Yes. So this again is a very wise reminder that having a life worth living should be the objective. Right? This idea that we have to hashtag hustle ourselves until we die, to me it's a crazy notion. Doesn't mean we don't do the work hard but let's make the work that we do worthwhile and let's have some time to enjoy it as well. So I love that idea that there you are on the top of Sunset Boulevard in your 20s watching the world go by. Hollywood.
Rich: Yes, exactly. Well you just evoke that memory by asking the question which is cool. I hadn't thought about that in a while.
Steve: I like it. Well I'd like to remind Awesomers out there that from time to time we have to take our victory laps because the journey that we're on is just made up of moments. That is made up of memories. Right? That is something that has value to us in the long run. That particular money that you earn back then or the whatever the little details of that day-to-day life that you were leading back then those things aren't going to fade away. It's not relevant today; it's the big picture memory. So I appreciate you sharing that with us. Let's switch gears. And was there ever a time when things were just not going so great? That you're like I don't know if I can do this, maybe I need to go get a job at a regular firm or when you just simply wanted to give up? Did you ever have a day like that?
Rich: Oh certainly. Yes there's always been. I mean being in any business there's always at the ebb and flow of it. And yes, there are times when cash flow comes to a low point and payroll is due and even there are a few successive pay periods like that and you watch your savings go down and down and you say oh. But I've probably been through that dozens of times over the last 25 years and it just comes and goes. So yes, there are always moments like that.
Steve: It's just part of the journey to face the adversary and just keep on going. And so let me just ask you this before we kind of get into the authority part of the episode where we talked more about the patent law and stuff. Is there any lesson that stands out from your journey that last 25 years or so that you've been running in business and in the law practice and so forth?
Rich: Well, I would say that it's all about relationships. Relationship is the foundation of accomplishment. Anything that you do no matter what field you're on, no matter what field you're in is founded on relationships. It's like you can be the most brilliant mathematician in a university setting but if you can't get along with your colleagues, if you can't form those relationships to get your work out there. No one's going to pay any attention. And you can have great ideas and again you need to create relationships in order to get those out into the world. So it's all about relationships and relationship is the foundation of accomplishment.
Steve: Boy I like that. That's a very good quote. People should write that one down, frame it, and put it on the old wall because relationships really are. This is another kind of equity I referred to earlier we talked about. Knowledge equity or the other types of things. Relationships have equity as well and it's not even the concept of that we're trying to get something from that equity. It's just that it exists and we can rely on it for help or support or our opportunity to help somebody else. There's so much to relationship so I really appreciate you mentioned in that. So we're going to come back right after another quick break and we're going to talk about a typical entrepreneurial challenge when it comes to facing patents and we'll be right back after this.
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Steve: Okay we're back again Awesomer and we're talking with Rich Goldstein about his background and some of the things that he's gone through as an entrepreneur and running his own practice. But now we're going to talk a little bit more about his specialty and what makes him an authority in the particular space of patent law. So Rich can you help me frame up the problem that a typical entrepreneur faces when it comes to patents. Let's say that they're going to sell any commerce and they don't know. Do they need a patent if they try to sell a product? How do they check if it's got a patent? Maybe you have some ideas of typical problems that we can talk about how they solve them.
Rich: Yes. Well the number one problem that entrepreneurs’ face, when they have an idea that they think they want to protect is not knowing how it works. Not knowing how the patent system works and not knowing who to turn to. I think it's those two things that stole most people from following through and protecting their products, protecting their inventions. And so beyond that, though I think that the two main big buckets of problems that entrepreneurs face is they're about to launch a product is wondering whether they can protect it and then wondering whether they're infringing on someone who already has a patent or already has the rights to it. And so those two concerns really splinter off in different directions in figuring out what their options are and what the issues might be.
Steve: Yes. So as I think about it, let's say for the sake of discussion that somebody's found a product. Maybe they're making some slight iteration on it but they're worried about it infringing perhaps on somebody else's patent. Can you give the broad strokes of the types of things that they need to do to protect themselves in that particular situation?
Rich: Yes. Well first of all let me say that to have a high level of certainty that you're not infringing will often take someone like me to help you break it down. That's just not much way over that. Is that if you want to really know if you're not infringing, it can get to be very expensive and it takes expertise to figure that out. But there are shortcuts. And what you really ought to do is to use some of these shortcuts to see if you can figure out that your situation is maybe one of those fun exceptions to that rule. Where you realize like oh okay it's not a problem at all and it doesn't even need analysis. So the point is some things need some pretty complex analysis but sometimes you can find the easy answer and then you can skip all that analysis. So let me give you an example, so if you have a product with a patent number and if you look up that patent number and you find out that the patent expired then right off the bat you know that you don't have a problem. Also if you do some research and you look up the related patents to a product and you find patents, that show that the concepts, the general idea of it and that they're more than twenty years old. You can bank on the fact that no one has a patent on the overall concept then the situation might be that some people have a patent on their specific variation or in some of the details of some of the improvements they've made from the general concept. But whatever that main concept is if you find old patents and when I say old I mean 20 years or older is pretty safe. Then that’s a shortcut to knowing that you can go ahead and makes something in that genre. You might need to be careful when you get too close to some of the more modern versions of it but you can certainly know that there's an opening there for you to make a product in that category.
Steve: So I like that in terms of the shortcut ideas and just for everybody out there listen, I'm a big advocate in terms of having expertise to deploy instead of beating my brain trying to figure this stuff out and even after I try to make these decisions I would still be second-guessing myself. So having experts to help you with it is a helpful thing but Rich maybe we can even just fly up to the 30,000 foot view and help people understand that just because you have a patent on something doesn't mean it's not infringing on other people's patents.
Rich: Yes, exactly. And that's a very important point that most people don't realize. It's a very common misconception where people will say well I want to get a patent. So that if the patents granted I'll then know that I'm not infringing on anyone else and it makes sense. Right? I mean if you think about it. If I'm different enough to be patentable then that must be mean that I'm different enough, that I'm not infringing right? Makes perfect sense but it's just not true and I'll explain the way it works and there is an example. Actually I showed you once before Steve as an example with the chair. So Steve if you invent a chair that has four legs and a seat in the back. And let's imagine that no one has done that before. You can get a patent on that chair with four legs a seat in the back but then if I come along a few years later and I say you know what that chair is great but if we just had these things along the side to rest your elbows on it would be that much better. So I invent armrests and I basically put in my patent application for that chair with the four legs, the seat in the back, and the armrest. Now the Patent Office will consider it and they'll know about your patent for the basic chair and they'll make the determination that I've made a significant improvement with these arm rests and it's a non-obvious improvement as they would say and we can talk about that a bit later. And so then they would say yes it's palpable and they would grant the patent to me, then from my improve chair. But the reality is I can't make my chair with those armrests without having the four legs, the seat and the backrest. So therefore, I would be infringing your patent in the process of making mind and now the Patent Office doesn't care that I'd be infringing they just want to know that I've improved in a non-obvious way and if I have they'll grant me my patent. So having a patent granted does not guarantee you're not infringing someone else because very often another patent can be the building block for yours. In most cases though the building blocks are old and when I say old I mean at least 20 years old and so typically your improvement is not going to infringe other patents. It's no guarantee of that and having your patent doesn't guarantee it. But it's not like in every situation where you have an invention you are likely to be infringing because of course there were prior inventions. Usually those prior inventions are older and infringed not an expired.
Steve: Yes. They've passed their prize. So I do think this is an important point to say that listen, the idea of having a patent is reasonable because we want to protect something that's truly unique and noteworthy. And there are legal thresholds that require something to be unique and you said original and so forth that we may talk about a little bit. We may talk a little bit about those in a moment but I just want people to realize that just because you get a patent doesn't mean that you're not infringing on somebody else. And it's so often overlooked and I've met a couple folks in the recent year to where they had a patent they thought they were king of the world with that patent. And they were out there slinging product and they didn't realize that their patent infringement they ended up still having liability and they never saw it coming. So that's an important point we've covered that. Thank you for the thorough explanation. I look forward to receiving my royalties from your armrest on my chair.
Rich: Absolutely and that's a good point. That's how that situation normally has worked out. When you've improved upon an existing product and there's a patent enforce typically that would mean that I would work it out with Steve so that I'd pay him royalties for his portion of the invention and then I can still exploit the improvement I've made in my improve chair.
Steve: So I want to give you pretty typical examples of an entrepreneur where they're ready to sell online, perhaps are already selling online and they maybe even sold on the Amazon marketplace or the eBay marketplace. One of the common things that they get is an intellectual property challenge or patent challenge that somebody files and says;” Hey we have just filed for a patent on this we're coming to get you, you better stop selling that.” If I came to you with that kind of problem what general line of thinking would you take to address that problem?
Rich: Well first of all if someone has only applied for a patent, then they shouldn't be able to stop you from selling it. You're just applying for a patent doesn't give you the rights to stop anyone from making, using or selling the product. That's what an issued patent would give you, all those rights. So all things being fair and we don't necessarily know that Amazon is going to be fair, they shouldn't take the side of someone who just has a patent application because there's no telling what's going to happen to that. First of all it hasn't been decided if they're going to get a patent and it also hasn't been decided what the scope of that patent is going to be. When I say scope, what I mean is what actually is covered by it. Just as we were describing before the scenario with the chair being for four legs, a seat and a backrest; it's very possible that the patent that Steve ends up getting is not for that simple combination but it's for the backrest having three vertical slats and the seat having a rigid perimeter and had a flexible seat portion. So it could be that because of the entire prior art other chairs that came before Steve's chair the patent becomes relatively limited and so none of that's determined until the patent is approved by the Patent Office. So I haven't seen the scenario myself but I couldn't imagine Amazon justifiably taking the position or taking the side of a person who simply applied for a patent.
Steve: Yes. So I definitely I think that's a good perspective to have and everybody just remember that Richard just sharing information with us. This is not the first hand legal advice because he's not been retained by you but I just want to say from my own perspective that these types of patent threats are levied out pretty often whether it's from other competing sellers directly or sometimes even escalated through Amazon. And my opinion is, until you have the patent number, until you can show us a patent then I don't care what you filed for. You don't have a patent protection on it just yet.
Rich: And that's really the right way to look at it. That's the way court would look at it. But the real question is like Amazon and their own system for valuing these complaints so they could whether reason will come into it or not like the people on the team that are evaluating that situation. May very well have just been dealing just before they received the IP complaint, they were dealing with a listing hijacking or some other issue and so they're not IP experts and we could only hope that they handle these things in the way that they should be handled.
Steve: Yes, that's that definitely is another episode we'll have about how the crazy hijinks that we see happening, rightly or wrongly they're happening on Amazon and other platforms. So Rich let's keep talking about this concept of patents and let's say that we've designed a product and it's patentable. What's that process look like from the high level? Just so that entrepreneurs out there understand. What are the steps and the general timings and things like that involved?
Rich: Okay. Well, the biggest and most important step in the patent process is preparing the patent application. So a patent application isn't like a form that you fill out like a job application which I don't even know if those still exist of a physical job application form everything is done online these days. But anyway the point is that it's not, there's no form, there's no series of fields that you fill in the blanks like my invention is blank and etc… It's more like a 20 to 50 page document with drawings that explains what the invention is. Shows how it's different from things that have been done before and basically starts the process of having the Patent Office consider your invention to be new and different enough to be worthy of a patent. So patent application is a super involved document, really the only way to do it successfully is to have it prepared by a patent attorney that's skilled in doing these things. And so that's the most critical part of the process is preparing and filing the patent application. Once it's filed then its patent pending. Then it gets at some later point to be reviewed by a patent office examiner and then once that examiner reviews the patent application, it may be accepted, may be rejected. And if it's rejected then there is an opportunity for the applicant to fight that rejection and when they fight the rejection hopefully we get to convince the Patent Office that is actually worthy of a patent.
Steve: Yes. So it's almost like a little trial right? You build your case and you write all this stuff down literally from blank sheets of paper. The concepts, the designs, even the drawings. And if you haven't already actually seen a patent, I highly recommend that you go and check out. Just search for patents and look up some of these patents and see how they're done. It's extraordinarily complex and quite interesting. Many of the drawings are to me crazy. I know they serve a purpose and it's all about showing clear definitions and details and so forth but many of them just seem to be absolutely worthless when I look at them as a layperson. I mean I haven't seen a… Rich, is a per se in this case but many patent application, this was a waste of time. But either way that's kind of building your case and then you take it to the judge which is the USPTO examiner I suppose and they determine through their own research whether or not they think it's a good patent or bad patent. And if they say yes it's a go that process is still two, three, four years how long is that roughly?
Rich: On average, it's about two years.
Steve: All right. So let's call it two years. If they say no you're a no go, then you got to go through the appeal process I'm sure that doesn't take away time that probably adds a little time.
Steve: How'd you handicap an appeal process if you have to do it.
Rich: Well, I mean when we talk about appeals though there's really two levels to that. I mean the most typical is the response which goes back to the same examiner which you would think well what good is that. He's just going to say the same thing over and he's going to reject it again but not typically. I mean I would say generally the odds flip is if most of the time there's an initial rejection. Most of the time when we present a good argument, we're able to flip the examiner and get them to approve the patent. Surprise. It involves going above the head of the examiner and they're very rarely taken. I mean I can count on one hand the number of times that I've followed that course of action. Usually these things can be worked out effectively with the examiner.
Steve: Got you. Okay. So when you have, a general lay of the land there, it seems to me there's probably an evaluation step where somebody says I've got this idea, I don't know if I should bother with this whole process. Is there some evaluation piece of the puzzle that we should talk about?
44.29 (Rich talks about the patent process.)
Rich: Yes absolutely. I mean that's important because before you jump into the patent process a really pays to see what your chances are and what your options are. So generally what we want to do is find out about what you have in mind doing with your product and what your different notions and ideas are of it. Then do some detailed research to see what's the best prior art we can find it. By prior art I mean things that came before you. So other patents in particular that came before your invention and that would help us figure out not only if it would be a waste of time to pursue a patent application. To put all that time and effort into preparing a patent application and that's where the big expenses but also it helps us steer the process. So it's like if you came to me and you said I have this idea for this shovel and it's got features A, B, C, and D we could. If we jumped ahead and did a patent application, we might give equal time to A, B, C, and D but if instead we did research and we found out that features A and C are pretty common in the prior art. Then now, when we prepare the application we put a best foot forward with regard to features B and D. And now we know what's different. We know what to emphasize and how to sell it. It's like if we sit, imagine we're trying to sell like A, B, C, and D are so different and so great. The examiner says; “Well wait um A and C. Oh right here. Oh no we meant B and D”. It just makes more sense foster to provide a strong showing for the things that really are different from the beginning. That's one of the advantages we gain by evaluating it and do good on prior art research.
Steve: Yes. That makes a lot of sense. Again this speaks to the idea that this is above the average person's skill set in my humble opinion, the idea that it's one thing to consider doing a provisional patent. And we'll talk about what that is and what purpose that serves with Rich here in a second. But I personally would even bother with that process myself but I really do want to suggest that people consider using experts. And I certainly would recommend Rich, as one of those experts to do the actual patent evaluation and then if you pursue it then get into the patent process without it. I think it's just up open to so many problems and later well as you try to enforce your patent on somebody, you may find somebody else challenge that patent and end up getting it voided potentially. Have you ever heard of that happening Rich?
Rich: Oh absolutely and the patents are presumed to be valid having gone through the process and being reviewed by an examiner but they're always open to challenge, their various ways to challenge the patent and in any real litigation. So when there's a patent infringement lawsuit, you're suing someone saying that they're infringing your patent. Their defense is always going to be invalidity. They're always going to try to make the case that the patent shouldn't have been granted because that's their wait out of trouble. That's their pathway to getting out of their infringement trouble, saying that the patents invalid. So yes there's always possible even of invalidity couple other things though touching on what you mentioned in terms of using experts. Yes, the value of any patent is how well-written and there's a lot of nuance that goes into not only getting a patent successfully through the Patent Office but also having one that covers, what you need it to cover. So what I would say is yes, use experts when this value at stake. So in any project you always have to consider what the value at stake is. If it's an e-commerce listing with a product that you're going to sell online, you really have to think of what's the upside before you consider whether it's worth getting people that can really do it well do it right. I mean sometimes people approached me to help them with a situation where it's for a lower value product. It's for a product which isn't really worth much to them and they don't even see a huge upside just perhaps another one of the products that they sell to help cover their monthly not. And so I tell them, it's probably not worth pursuing patenting on. It's not worth getting me involved in it because there isn't enough value at stake. So I think the thing to do with any invention or any product is to always be real about what the value is at stake. Sometimes you can get really attached to a cool new idea but you want to be real with yourself about what the actual values at stake and whether it pays to pay people. To really make it happen or maybe there just isn't enough upside and you should focus on other things.
Steve: Boy it's such a good piece of wisdom right there. So one of my axiom number 14 is the “Juice is worth the squeeze”. If you do not think that there's a sufficient upside to invest in a product to bring it to patent and go through the whole process then you shouldn't bother with that product to begin with or if you do, just limit your expenses and exposure. And I would definitely say that you really have to have some positive upside and long-term upside with the product. You're going to go through the patent process that's for sure. So is the “Juice is worth the squeeze” very good wisdom.
Rich: So I'd like to hit on a couple other things though that I think you opened up through the last discussion. A few things that I think everyone should know. Number one when we mentioned Provisionals. So what a provisional patent application is, it's a stepping stone toward getting a full utility application. So utility application is the way in which you ultimately protect a useful invention that has some functional differences. So we can take us an early step and do a provisional application which gives you a year to file that utility. So it gets your foot in the door now. The caveat with provisional applications is they give you priority but those priorities only as good as it is well-written, the Patent Office doesn't examine it. They’re not going to tell you, “Hey need to write more here, you need to have more detail here”. So it's going to go on file at the Patent Office and if it's not well written it will just give you a false sense of security. You'll just say well I filed my provisional, I guess I'm good. But the truth is you might not be. So beware of a short-cut provisional. If you're going to do a provisional still make sure that it's well written because otherwise it's just giving you that full sense of security. So there's that other thing important to mention is the importance of filing your application before you publicly disclose your invention, before you start selling it. If you start selling it before you file a patent application you will lose the rights immediately. In most of the world in the US, there is technically still a one year grace period. So it's like worst case if you start selling it and you haven't filed a patent application within a year, you are absolutely out of luck. And I see so many people lose because they don't know about this. Even within that year there are ways in which you could lose the rights to it. So the safe bet is to file before you start selling it and a well-written provisional will stop that clock for you. So if you file that provisional and you follow it through by doing that utility when you need to do it, then you'll be ok. But again as I said, the priority you get is only as good as it is well written. So that provisional has to be done well to basically get your foot in the door at the Patent Office and get past that issue of you starting to sell the invention publicly.
Steve: Boy that's a very important takeaway there. So even myself, I didn't really realize that the provisional and how well it was written was so important to the whole kind of defense of this patent in its future. So this is just another reason why being educated about it and I want to take another minute to just share with everybody that Rich's book the ABA consumer guide to obtain a patent and I like the subtitle because it spoke to me when I first got a copy from Rich. The practical resource for helping entrepreneurs and innovators protect their ideas and the fact that it's pretty short read which is nice. I have to say it's already a very intimidating subject and so to come up with some sort of big fat la book, I would just want to check out immediately but the idea that it's well written and I think your endorsement for frame Frank Kern calling it plain English is a really well earned definition. So can you tell us about how long's that book been out and who do you think is served best by reading it?
Rich: Sure. The book has been out just about two years. It came out in August of 2016 and by the way the principles in there, they don't date themselves. So they're not the principles in there are exactly the same today. Nothing has changed in the law that makes it less relevant because it's really all about understanding the concepts so that you can make good decisions with regard to patents. If you read this book it'll put you in the 99th percentile in terms of what people out there know about pads. I mean I often say that when people say that the patent process is costly, that the biggest cost in the patent process is people's misinformation about patents that's where they spend money on the wrong things and for the wrong reasons. So frankly one of the things I wrote this book for was for the busy entrepreneur and that before this book came out really the only mainstream title that people were turning to is a book called Patented Yourself which is like a 500 page book that goes into extreme detail about how to write a patent application. I mean in my opinion, an opinion of most others in this field you can't really do an effective job at writing patent yourself. So the best part of that book was typically that you in the process of doing it you learn a lot about the mechanics of how patents work and that could be useful to you when you hire a patent attorney to help you do it. But who wants to read a 500-page book and learn all the details about how to do surgery when you're just going to hire a surgeon to begin with. So what I set out to do was write a book that a real entrepreneur would read. Who doesn't have 30 hours to read a book like that they'd rather spend maybe four hours and get the concepts so that when they do hire someone to do their surgery they know what to ask for what, to look for and how to get the most out of that money. So that's when I wrote the book for and just in terms of the cost of it it's the ABA really underpriced it. It's kind of funny the ABA charges for most law books like a hundred, two hundred, three hundred dollars and a lot of times my colleagues will say;” Hey, I just published a new book on patent damages will you buy a copy?” and then I look and it's a couple hundred all a book and I want to do my friend a favor but I don't know that I need that book for two hundred dollars. And meanwhile they price this book at $20 and on Amazon, you know how Amazon plays with prices most of the time it's every 13 dollars, it could be 17 dollars but rest assured it's fewer than 20 bucks. So there's no way to not get your money's worth.
Steve: Yes so I definitely want to reinforce the fact that having a core education for anyone seeking a patent, even though I still highly would always recommend hiring an expert to do the process. But having that education makes you a manager who can help with the process and understand the process. And it probably could even help accelerate the amount of time or reduce the cost because instead of you having to be explained the basics over and over through a typical process, you'll already be armed with some information. So I think money well spent for sure.
Rich: Yes and absolutely. I mean, just an insight on that is life typically when I'm quoting clients and I usually work on flat fees with regard to patent projects. I'm quoting based upon what I expect the project to be. Including how clear the person I'm working with is on their concept and on what they want and if they could really communicate to me well, what they want and what they're looking for and we're on the same page. Then what I'm quoting, I'm seeing it as a project that's going to take up less of my bandwidth than if I'm working with someone who just really has no idea what they want. And I know it's going to involve more conversations for me to really extract from them what we plan on doing. So absolutely knowing the process will pay off a hundredfold in that regard.
Steve: Yes I can see that and in absolute terms. It's always about education we talked about knowledge equity and so forth. Without you understanding the basics, you have to be educated and you're paying your attorney pretty significant amounts certainly more than 20 bucks by the hour to educate you. So why not get the basic education now we'll make sure that in the show notes we get the links out there for all you guys out there so you can get a look at this. I definitely recommend it out. Rich before we go and we're going to be running out of time here pretty soon not that the tape will cut off but I wonder if you could give me any advice about your view of the world as it relates to patent trolls. This is a term that people hear very often maybe first you can tell us what a patent troll is from your perspective and then give me your thoughts about the state of the union as it regards and relates to patents trolls.
59:25 (Rich gives advice regarding the patent trolls.)
Rich: Okay, so patent troll is consider well basically the way that this whole situation came about is certain entities started buying patents of all kinds and especially some very broad patents. May be patents that came about at the beginning of the Information age or let's say in the mid-90s and so they covered some very broad concepts and even how emails are transmitted or before people were even thinking about shopping carts. It could be for the idea of a shopping cart and so then they go out approaching everyone who's using a shopping cart and saying you're infringing my patent you need to pay. Right? So this was a situation that has been developing over the past couple decades. And there are some pretty egregious examples of that we've all seen and through that what came about where these term patent troll and the way that they defined a patent troll is. Well it's a company that they don't make anything they don't actually make any products, they just don't patents and they go after people for those pacts. And so there's a whole backlash against patent trolls and so there's been attempts at making rules and there have been some rules fashioned to try to curb this problem of patent trolls. But let's look at it from another perspective, every guy who developed something in a garage and said I want to patent this so that if a big company tried to steal my invention I could go after them is a patent troll by definition. Because the guy who doesn't actually make a product that just someone who had an idea and patented it and then if some big company does it they want to enforce their rights, so basically this whole notion of patent troll. Yes I get that it's a nuisance in certain circumstances but there's a bit of throwing out the baby with the bathwater in the sense that we're undermining the American dream of being a person with an invention that can go up against the big guy by being able to protect his idea. So this definitely misuses and there are definitely people that assert patents of the wrong time, for the wrong reasons that unfairly. One of the things we have to be careful of is we still want to protect the little guy who had an idea and maybe he doesn't have the budget to produce his product and he still should be able to enforce his rights against the big guy.
Steve: Well that definitely is the purpose of a patent right is, to give somebody who has actually got something noteworthy and creative and worthwhile. To me that deserves protection and that's the purpose of it. In my perspective we have we've faced dozens and dozens and dozens of letters from basically law firms that to me represent patent trolls and these are people who procure patents. Most of them are software related which I find significant difficulty with software patents in particular because the idea of how you move bits and bytes is purely theoretical in so many ways. Even the one-click patent that Amazon had I found it laughable. That was something that was patent orderly now. Again I'm not a legal scholar, I'm not the patent examiner but over the course of time I've had dozens and dozens and dozens of letters where the law firm will send us a thing and it'll say; “Hey we got good news and bad news. The bad news is you're infringing on our patent because of your left hand search navigation menu which was not unique to us or anyone else for that matter the good news is if you're an ascetic for 10 grand will go away now otherwise we're going to take you to court” and that's kind of the move of these totally patent…I'm going to call them patent trolls. I'm not putting words in your mouth and they've also found this venue down in Texas where it's become kind of the patent troll capital. I don't know why the judges are so conducive to allow these sorts of things that happen but from my perspective as an entrepreneur there has to be some way to find balance between good solid patents. And to me some of the very least hollow on the face of them software process and some of those things. What are your thoughts? How do you feel about software versus some of the mechanical things in the world?
Rich: Well let me say a few things about that. I mean first of all, the pendulum like as a reaction to all of those problems that you're mentioning. The pendulum has swung pretty far in the other direction. So I mean first of all the solution is better pads. Right? It's like you talk about the one-click patent etc. The solution is better patents and over the past decade the Patent Office has gotten a lot better about quality control and having applications given a secondary review to make sure that patents like that don't get issued right off the bat. We have more quality patents in play but now as far as the pendulum swinging pretty far in the other direction as a reaction. There was a case a couple of years ago in the US Supreme Court that was a pretty strong reaction to that situation where you have software patents that cover some pretty big and common concepts and they fashioned some rules about abstract ideas and labeled a whole bunch of different ideas or abstract ideas on patent as unpatentable. Which is really undermined some of the potentially more worthy patent processes or made it. So that's become very difficult to patents offer because yes indeed some things are very basic and should be knocked out because of another concept which we haven't talked about which is obviousness application. If it's obvious it shouldn't be granted even if the exact thing hasn't been done before. If it's just an obvious variation it should not get a patent but for whatever reason the Supreme Court fashioned some pretty rigid standards that have made it so that even very clever processes are not patentable or they're having a really hard time getting them through the Patent Office because of that. So like I said the pendulum has swung pretty hard against software patents in the past few years and so yes there are definitely clever things and clever processes that should be afforded a patent to protect the people that innovated them. And to encourage them for to integrate things like that in the future but currently the situation is that there are a lot of things that are very worthy that are not getting patents because of how far the pendulum swung in June of 2014.
Steve: That's fascinating. Well it definitely sounds like we've got lots more to talk about in a future episode Rich. I definitely know that and I always would tip my cap to you just in terms of your knowledge and bow to your wisdom for sure on this topic but I really enjoy the idea that we can debate this topic of patent trolls and their applicability and understanding where the pendulum is. I love this stuff. Before we go Rich do you have anything, maybe any last words of wisdom in a general sense for our Awesomer community out there?
1:07:20 (Rich gives his final words of wisdom to Awesomers.)
Rich: Well two things, first of all I'm realizing when you asked in the beginning about my parents and how they shaped my path. I only talked about my father so I just want to acknowledge my mom for she's a people person and so my dad is a technical guy. My mom was the people person so the relationship side of things I really got from her and all that wisdom about being good to people and giving and contributing to others so there's that wisdom. And that also just reinforces the relationship is the foundation of accomplishment aspect of it. So I want to say that, just in terms of final words of wisdom about the patenting side of things that is just the more you learn about how it works the more options you'll have. With awareness comes choice so the more you know the better options and decisions you'll be able to make. That once you know how to look up a patent and see when it expires now all of a sudden you have the option, perhaps waiting for the expiration to start making the product well. Once you know that expired patents are a fair mean but now you have the option to make a product that had a patent number on it that happens to be for a 30-year old expired patent and there's a lot of people that don't have that choice because they didn't know that so that would be my final advice really is. “You gain as much awareness you can, it’s about how all this works because that will give you more choices in your business.”
Steve: Very good advice Rich and a nice last minute save with the shout out to mom before we get done here. Thank you again for joining me Rich and Awesomers we will be right back after this.
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Steve: Wow what a great conversation with Rich Goldstein one of the best patent type resources you can have for especially a start-up type of company, when you're trying to learn about this stuff and if this is the right kind of solution. Rich’s company and his firm it's really a wonderful resource and somebody that I trust to help guide people through this process which can be very complicated and overwhelming to the average entrepreneur. I just love the fact that he's got an engineering mind combined with the understanding of the legalese to get patents through the system or if you're looking to sell a product he's a good guy to give you the skinny on. Is this potentially going to violate somebody else's patent? Am I going to get in trouble for selling this? If you have those kind of concerns, a little bit of money up front to figure that stuff out is way better than ending up with tons and tons of products. I know people who have fifteen thousand, eighty-five thousand units of inventory and those are two different examples by the way. They have inventory of pad infringing products and they just want to get their money back but the patent holder has no time for that. So patents are really important thing and I'm thrilled you guys joined us here on episode 21 of the Awesomers.com podcast. Go to Awesomers.com/21 for relevant show notes and details that's Awesomers.com/21.
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