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The Apple of Our Trademarking, Copywriting and Patenting Eye

Imagine that you’re an inventor or entrepreneur, just starting out and struggling to turn your brilliant idea into a commercially viable venture. You might be looking to protect your intellectual property from commercial theft through patents and trademarks, say in Sydney or anywhere else in Australia. There are challenges, but you’re willing to face them, because you believe in your work and what you’re doing.
Then there are the challenges of becoming and maintaining a status as a multi-national, multi-billion dollar commercial computing empire.
Apple was established in 1976, the brain-child of Steve Jobs as well as Steve Wozniak and Ronald Wayne, both of whom don’t get nearly the amount of credit they deserve. Apple’s road has been long and bumpy, but they’ve brought together some of the best technologically-focused minds of past few decades and they have about 20 000 patents under their belt (and counting). Their litigation history alone runs into over 350 cases where they’ve either been the plaintiff (defending their rights) or the defendant (where they’ve been perceived to have violated other people’s rights).
Here are some highlights from the past four decades.

Apple Corps vs Apple Computer

In 1978 Apple Corps (the record company that the Beatles founded) filed suit against Apple Computer for trademark infringement because even back then, Apple was looking at being involved in the music business. Apple Computer settled with Apple Corp in 1978 for $80 000, on the condition that Apple wouldn’t have anything further to do with the music business – an agreement that history would show that they would rather flagrantly violate. That first happened in 1991, when the Apple IIgs came with a music synthesiser chip. Apple Corps wasn’t having any of this, and Apple Computers had to pay Apple Corps over $26 million in compensation (equivalent to about $50 million today). This time Apple had to agree not to package, sell or distribute music in the form of physical materials (records, CDs and so on). When Apple introduced iTunes in 2001, the iTunes Music Store and the iPod in 2003, Apple Corps took them to court again. Three years later the verdict came down in favour of Apple Computers, probably because Apple Computer wasn’t producing records or CDs.
Apple Corps and Apple Computer finally settled their differences in 2007 when the two Apples agreed that the computer company would own all Apple-related trademarks, leasing back some trademarks to Apple Corps for their use.
iTunes now has over 600 million active accounts servicing over 300 million mobile devices and records and CDs are gradually becoming things of the past, so it’s hard not to see Apple Computer as being the ultimate victor in this decades-long battle. Still, since 2010 the entire Beatles catalogue is now available on iTunes, so it looks like it’s been a bit of a win/win all round.

Apple Computer, Inc vs Microsoft Corp.

Probably the most famous legal dispute that Apple has been involved in has been in its dispute with Microsoft. Whereas trademarks, broadly speaking, involve the use of graphical symbols, copyright involves the order of words and symbols, which is why software, which is all about a correct order of words and symbols, is a copyright issue, and well within the purview of intellectual property lawyers and attorneys. Apple’s 1988 argument, in a nutshell, was that it had invented the graphical user interface (GUI) – the method whereby most of us are used to using computers with windows, icons and mouse arrows etc. And although Apple had licensed their GUI to Microsoft for the release of Windows 1.0 in 1985, Microsoft then made changes that were in violation of Apple’s copyright. In 1994, after six years of wrangling and an appeal, US courts determined that the changes that Microsoft had made weren’t copyrightable. A hugely important point here was that the changes made were the only possible way of expressing a particular idea. You can only claim copyright protection (or trademark and patent protection) if there are multiple ways of expressing an idea, and someone is violation your particular, legally protected expression. An idea, or even an overall “look and feel”, as Apple argued, isn’t protectable.

Nokia vs Apple

Although Apple is primarily known for its stylish computers, it’s arguable that it’s real success story is the iPhone. Introduced in 2007 the iPhone is frequently cited as the invention that revived Apple’s fortunes. But in 2009 Finnish company Nokia argued that the iPhone used technology that Nokia had not only invented but was essential to all mobile phones. After two years of arguments in multiple courts, Apple had to concede defeat, and, for an undisclosed sum, had to, and will continue to have to, pay royalties to Nokia for use of their technology.
The litigation continues though, between Apple and Samsung about Android phones and tablets. Over 50 lawsuits, millions of dollars and claims in the billions later, the war, to date, continues with Samsung being, so far, the big loser, being ordered to pay Apple hundreds of millions of dollars in compensation.
Who said intellectual property law was dull?

Sources:
http://www.bbc.com/news/technology-11763650
https://scholar.google.fr/scholar_case?case=17794375458513139314&q=apple+v+microsoft+1994&hl=en&as_sdt=2006
http://bgr.com/2017/02/03/apple-vs-samsung-sales-2016/

The Joys of Winter Patents

As the cooler seasons come to the Southern Hemisphere it’s time for people to start rugging up. Global warming notwithstanding there’s still enough of a nip in the air to make people start thinking of staying warm.
Throughout thousands of years people have been finding solutions to heating up, but since fire and blankets aren’t patentable – inventors have had to come up with other ways of turning our desire for warmth into something that they can sell and that needs protection from copycats eager to steal their potentially hugely profitable intellectual property.
Patent US 3114825A from General Electric dates from 1961.

The Joys of Winter Patents
This pad is a sensible solution to the potential problems of heating pads. The possibility of electrocution is taken care of with special circuitry and the possibility of fire with non-flammable fibreglass insulation. Heating pads have a distinct advantage over other methods of heating. Most heating requires the warming the air in a room which then warms people up. Unfortunately, air isn’t a particularly great conductor of heat, so you need to heat up a lot of it to feel its effects. The other disadvantage of hot air is that it rises, so it’s going to heat up the ceiling before it heats you up. Faced with the realities of physics, and the insight that it’s people who want the warmth, not the environment, inventors have gotten somewhat more inventive and the patents a little more bizarre.
US 4605000A from 1986 – The Greenhouse Helmet
The Joys of Winter Patents 2

Why should Planet Earth have all the fun of the greenhouse effect? Since a lot of body heat escapes via the head (heat travels up, remember) why not trap it where it’s needed. The Greenhouse helmet is made from a plastic with anti-fogging treatment, so you can get on with your life without breath condensation getting in the way. All your hot air creates a comfortable, tropical environment and the carbon-dioxide in your exhalations feeds the plants that are conveniently living in the helmet. Aside from the warmth, the plants provide you with fresh air, protected from pollution and the moisture in your breath means that you never have to water the plants either. It’s like a holiday in Queensland without the inconvenience and expense.
US 6612440B1 from 2003 – The Gerbil Vest
The Joys of Winter Patents 3

Necessity is the mother of invention, so why not try to kill several necessities with one stone, or in this case another stylish and subtle item of apparel? Although the Gerbil vest was probably designed with the intention of keeping gerbils exercised and teaching kids the responsibility of looking after their pets, the fact that a warm animal is running around your trunk and that you’d have to be twitching and moving around, and generating your own body heat a lot as one of the humankind’s favourite rodents uses you as an athletic track, you can’t help but be both burning calories and heating up at the same time. Like the Greenhouse helmet above the Gerbil Vest makes ingenious use of synergies to solve several problems at once. One can’t imagine why these things just aren’t flying off the shelves every winter.
Finally, winter isn’t just about staying warm. Winter is preceded by autumn and that means the pretty, but annoying reality of leaves falling off trees.
US 604245B1 – Leaf Gathering Trousers
The Joys of Winter Patents 4

Why waste a walk in the garden? A pair of these zip-on tubes have a net between them. As you stride through over-bounteous nature leaf-fall magically gathers up between your legs so that you become, in effect a human rake. If you’re really smart you can put all three of the above inventions on your kids, so that they can pretend to be astronauts with their pet gerbils and doing useful work gathering specimens of life on the alien world of “Outdoorsia” (which really has become an alien world for a lot of kids), while getting them some exercise and away from glowing screens while you can stay inside, resting your feet on a warming pad while getting a turn playing your own games of Minecraft on the tablet for a change.

Sources:
https://www.google.com/patents/US3114825
http://mentalfloss.com/article/89517/10-delightfully-strange-patents

Easter Patents

People who are “invention-oriented” like to come up with solutions to problems. Another way of saying this is that inventors, at some point, come up with an idea that satisfies a need. But coming up with an idea isn’t enough to keep that idea yours because intellectual property laws, which include copyright, trademarks and patents, don’t protect ideas in and of themselves. IP protects the particular physical manifestation of that idea. In copyright, the physical manifestation is the order of the words. With trademarks, it’s a particular graphic design. With patents, it’s the design for a physical thing.
The great thing about holidays is that by their very existence, they create needs. If it’s Christmas, you need Christmas Trees. If it’s Valentine’s day, you need bon-bons and flowers. If it’s Easter, you need bunny rabbits, chickens and Easter eggs. Where there is a need, there is a business opportunity. Opportunities suggest ideas but since ideas aren’t enough you need to invest time, energy and money into translating those ideas into physical solutions. Then, because you want some legal redress in case someone steals your solution, you’re going to want to get a patent. Patents are all about protecting investments.
Here are some “solutions” to the “problem” of Easter that inventors considered important enough to want to protect with patents. This makes sense because the Easter industry is literally worth billions of dollars in sales every year. The ideas might be whimsical, but the money and business interests at stake certainly aren’t.
Marshmallow Peeps are a multi-million dollar institution in the United States. They’re basically coloured and flavoured marshmallows. Originally they were in the shape of chicks – hence the name – but they now come in a variety of other shapes, including the inevitable bunnies. Peeps were the invention of a Russian-born candy making genius called Sam Born, who was about as close to a real-life Willy Wonka as there ever was. Born started his business in 1910 and invented (and patented) techniques for creating chocolate sprinkles, coating ice-cream bars in hard chocolate and for mechanically inserting sticks into lollipops but his Peeps were hand-made, requiring a total of 27 hours per Peep. It wasn’t until the mid 1950s that his company devised ways of automating the process. Incredibly, Marshmallow Peeps weren’t trademarked until 1980, which is probably a comment on increasing competition from “look-alike” imports from countries that have looser interpretations of IP and the need to protect the brand.

With millions of eggs being decorated in schools all over the western world it was inevitable that someone would come up with some way of automating the process. US4573586A from 1986 (now expired) was for an Easter Egg dyeing and drying device that was meant to address the problem of messiness. As the “Background of the Invention” in the patent application states:
“Each year hundreds of thousands of kids in the United States and other countries participate in Easter egg dyeing festivities. While the kids love it, the parents or teachers hate it, because egg dyeing is a messy art. The children, usually of age 3 to 11, spill the dye on the table or on themselves.”

easter patents image 1
https://patentscout.innography.com/share/wWJO319N7NVyhHIwMXWnZw%3D%3D

An earlier patent US3848564 from 1973 (now expired) took a slightly more mechanical approach.

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Source: http://www.ipwatchdog.com/2013/03/30/happy-easter-2013-patents-for-the-occasion/id=38407/

But not all solutions have to be complicated, and just because a design seems simple doesn’t mean it isn’t worth protecting. US Patent US4121435A from 1978 (now also expired) described a hinged plastic egg, which could, no doubt contain other eggs or candies or toys.

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Source: https://patentscout.innography.com/share/4k0DDXU7nnMigRI0fjttyQ%3D%3D

You’ve no doubt encountered dozens of these eggs in your life without ever realising that the original was protected by a patent.
Given recent advances in technology, it’s still possible for some enterprising someone out there to find a new, merchantable and exploitable take on Easter. All it requires is a little imagination and maybe a hint of creative madness in the nicest possible meaning of the word.

Patents in the World of Cricket

Cricket is one of those sports that are totally associated with a particular culture, but have still managed to find new homes in unexpected places. Baseball, for example is the sport of the USA but has a strong following in Japan. Golf is inarguably Scottish, but it has spread far and wide. Cricket is fundamentally English and yet it has fans (in the truest sense of the word as ‘fanatics’) in many countries that were once part of the British Empire (now downgraded to the Commonwealth) including Australia, New Zealand, South Africa, India, Pakistan and the West Indies. And yet this most quintessential of British games probably started its life in the middle ages in Flanders. The clue is in its name which might derive from the Middle Dutch – met de krikket sen (chase with the stick) – which also implies that cricket is in some way related to hockey though how we came from a game where the stick chases a ball to a game where a ball chases a stick is lost to history. Someone hundreds of years ago must have thought it up, after all, games are inventions too.

And it’s because games are inventions that they lend themselves to further invention. The challenge to creating patents in cricket is to develop ideas that are novel but that still conform to the strict rules that standardize the game for playing internationally.

The rule of novelty is crucial whether you’re making patents in Sydney or Australia or anywhere else in the world.

And, of course, in order to keep the game fair at an international level then irrespective of whether its Australian inventions around cricket or Indian inventions around cricket an inventor can’t simply invent a bat that exceeds approved dimensions (the Mongoose Bat – WO2009144491 notwithstanding), or a ball that violates rules of weight.

Nevertheless dedicated fans and even more dedicated corporations have managed to come up with a few patentable innovations within the limits specified by the International Cricket Council.

Australian Patent AU-665151-B1 is one of several patents that protects Channel 9’s Stump Cam that lets television viewers watch a cricket game from a viewpoint available to no human being. Stump cams have literally become a game changer, in as much as they’ve been crucial to many decisions of umpires when they’ve had to make a call on close catching positions,  run-outs and stumping. Similar patents protect stump microphones which have provided interesting insights into conversations between umpires and players that were previously unheard by spectators.

Patent AU-582809-B1 protects Rooney and Bye Australia Pty Ltd’s portable cricket pitch, allowing players to play in places that weren’t expressly designed for cricket.

“Bouncers” are bowls that can cause tremendous controversy, not the least of which is because they are potentially lethal. Umpires have discretionary intervention about bouncers, but seldom exercise it. Indian patent 1009/DEL/2003 protects a cricket pitch which makes it impossible to bowl bouncers.

Even the Americans have gotten in on the act. US1624822 is for a cricket ball that maintains its properties even in the rain. US

Cricket-related inventions are not limited to the actual game. There are also many patents protecting devices like cricket ball throwing machines and electronic game simulators. In 2008, Australian inventors Adam Dubrich and Leigh Warren were granted patent 2008318301 to protect their Cricket Cooler – a 33-litre very flash, strong bodied esky on wheels. The patent runs to 21 pages and is worded in such a way as to allow protection for related inventions in other sports. The care that Dubrich and Warren have taken to protect their invention has paid off with commercial success. Obviously, this level of care could only have happened with the help of a qualified IP specialist.

So the good news is that in spite of the restrictions, there’s still some room for inventive cricket fanatics to develop new ideas for the game and to protect those ideas through patents and trademarks with the help of a IP attorney who will share your vision.

References: http://www.abc.net.au/catapult/askexpert/s1768512.htm

https://en.wikipedia.org/wiki/Limited_overs_cricket

https://en.wikipedia.org/wiki/Cricket

http://www.cameracorps.co.uk/rentals/speciality-camera-systems/hd-cricket-stump-cameras

http://www.independent.co.uk/sport/cricket/phil-hughes-dead-six-things-cricket-could-consider-to-protect-batsmen-after-australian-opener-dies-9888211.html

http://www.selvamandselvam.in/blog/cricket-and-patents-these-inventions-will-bowl-you-over/

https://mishraamit.wordpress.com/2011/03/27/patents-on-cricket/

https://www.ipaustralia.gov.au/tools-resources/case-studies/cricket-duo-hit-six-cooler-innovation

The Twelve Patents of Christmas

Yes, it’s that time of the year again. Christmas has over the centuries attracted inventors and innovators hoping to make it more fun. Christmas patents are dominated by American inventors, but the principles involved in sound patenting apply just as much to Australian patent registration too.
Here then, are twelve patents that represent innovations created in the spirit of Christmas.

Number 12, 11 and 10 – Artificial Christmas Trees

While natural Christmas Trees look and smell great they have several disadvantages, the most apparent of which is that they shed needles and create a huge mess and even worse, they’re not reusable, so artificial Christmas trees always had considerable commercial potential. Early Christmas artificial tree patents date from the first years of the 20th Century. Aesthetically, they had varying degrees of success.
US Patent 994 248 from 1911 looks like a drying rack.
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US Patent 1 577 207 from 1926 is made from a set of pre-cut plywood pieces that gives it a sort of proto-Ikea look. It was designed for display windows in department stores and had shelves that you could put sale items on.
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It wasn’t until 1927 that somebody came up with something that at least pays some lip-service to looking “natural”. Like all modern Christmas trees, it had another advantage that real ones don’t have. It was collapsible for ease of storage.
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Number 9, 8 and 7 – Christmas Tree Decorations

US Patent 1 791 533 from 1931 takes advantage of a greater confidence in the then-new practice of making things from plastic and using them in electrical devices. This is basically a small plastic Christmas Tree with lights. It was also, supposedly, water proof.
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Then there is, of course, tinsel. You’ve probably never wondered until now how tinsel is made, and no, the answer isn’t “elves”. There are actually specialised machines that make it and this patent, Number 2 031 566 from 1936 is one such device.
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US Patent Number 2 110 353 from 1938 might look boring, but it’s historically significant as the first application of using a set of cords deliberately as Christmas tree lights. It’s also the origin of millions of lost hours devoted to finding blown lights because, when lights are arranged in a series, when one light blows, all the other lights go out too.
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Number 6, 5 and 4 – The Mistletoe Theme

The origins of “kissing under the mistletoe” for luck are lost to history. All we can say for sure is that the parasitic plant was sacred to the Druids and might have played some part in their Winter Solstice Celebration. Inventions along this theme seem are frivolous, but the inventors must have seen at least some commercial potential.
US Patent 4 488 316 from 1983 is a “Mistletoe Supporting Headband” for the man who wants to do some mobile Christmas stalking.
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US Patent Application 2002 012 6506 from 2002 is for a Hanging “mistletoe” ornament that incorporates a motion sensor to detect someone who’s under it and then puts on a light show and plays music.
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US Patent D 407 189 is an example of a design patent (referred to a registered design in Australia). Usually, when we think of patents, we think of protecting the way an inventor has solved a problem, so the emphasis is on how something works. With a design patent, the emphasis is on how something looks, which, as any fashion designer will tell you, can have huge commercial value, which is probably what was in the mind of the inventor of the “Kiss Me” cap.
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Number 3, 2 and 1 – Toys

Where would Christmas be without kids and their toys? You could fill volumes with the records of toy patents and if you’re an inventor who’s seriously interested in commercial potential then toys are the way to go. If you have a truly brilliant toy idea you will have to protect that invention with a patent registered with the help of a qualified patent attorney to insure, as much as possible, that your invention is safe from commercial theft. The potential rewards are enormous, as these top three Christmas patents show. Intriguingly, all these toys demonstrate that an invention doesn’t have to be complicated to work, it just has to be original and attractive.
US patent 2 415 012 1947, The Slinky, remains one of the most popular toys ever.
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Californian company Wham-O hit gold with US Patent 3 079 728 from 1958 when it sold 25 million units of the Hula Hoop in its first four months of release.
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And Wham-O hit gold again in 1967 with patent 3 359 678. The Frisbee was an aerodynamic (and safety) improvement on the pie tin lids people used to throw at each other (and still do sometimes).
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Source: http://www.ipwatchdog.com/tag/christmas-patents/

Presidents, Inventions and Their Patents

The vast majority of politicians aren’t generally known for their intellectual accomplishments. It’s not because politicians aren’t very bright – like every other profession, politics comprises individuals who run the gamut of “genius level” to “too stupid to be alive” with average minds making up the majority. However, politicians tend to focus their brainpower on matters devoted to acquiring power, winning the great popularity contest known as “democracy”, and, if successful influencing social and economic development and surviving in an environment that’s so cut-throat that one false move might be your last. Politics, especially as it’s practised nowadays, really isn’t an environment conducive to creativity. Politics is also incredibly time consuming and politicians, especially the successful ones, are politicians 24/7/365.
Inventors on the other hand, who are make up the vast majority of people who are looking for patent protection, focus their brainpower into solving problems and coming up with solutions. They generally also either have a lot of time on their hands, or they’re so good with time management that they can make the time. Inventors often also work alone or in very small teams of people who are focused on helping each other out, rather than stabbing each other in the back, so they don’t have to waste valuable mental and emotional resources on looking over their shoulders constantly.
Since politics and invention exists in such different realms, it’s a wonder that they ever meet at all in the same person, but it has happened, albeit rarely.
Benjamin Franklin (1706 – 1790), who as a “founding father”, was arguably one of the co-inventors of the United States of America, but before his involvement with politics he already had a long track record in invention. In 1741 he invented the “Franklin Stove”, designed to get more heat with less wood. The result was sub-par and it was only when a later inventor, David Rittenhouse (1732 – 1796), solved many of the problems of the original stove, that the stove finally fulfilled its promise. Unfortunately, fame being the fickle thing that it is, Rittenhouse’s improved device is still called “The Franklin Stove”. Franklin’s other inventions were more successful: The Lightning Rod (1750), The Kite (1752), The Glass Harmonica (1761), Bifocals (1783) and a “Long Arm”. – a device for reaching books off high shelves. And while Benjamin Franklin was too old to make it to President of the United States, he was President of Pennsylvania from 1785 to 1788, drawing his inventing days to a close.
One inventor who did make it to the Oval Office, (before there was such a thing as the actual Oval Office) was the USA’s second president, Thomas Jefferson (1743 – 1826). Although he’s often credited for inventions like a device for extruding macaroni and a spherical sundial, the one thing we know of that he invented for certain was a Moldboard Plow (1788 – 1798), designed to cut through soil with the least possible resistance. Although he never sought to patent the plough, it did win him a gold medal from the French Society of Agriculture.
Both Jefferson and Franklin were polymaths during the tail end of the “Age of Enlightenment”, a time when men (and unfortunately, not too many women) were valued for their broad minds, and a time when men (and unfortunately, no women at all) could participate in politics on the basis of their intellects, rather than for their telegenic appeal.
The one man who did make it to POTUS and who was also an inventor and who managed to get around to patenting his invention was Abraham Lincoln (1809 – 1865). With the sort of face, physical presence and tendency toward clinical depression (or “melancholia” as it used to be called) that would practically guarantee that he wouldn’t be elected today, the man who is generally acknowledged to be the greatest POTUS ever had a humble past as the owner of a general store before he went into politics, eventually serving as the Whig Representative for Illinois (1847 – 1849).
During those years he came up with a solution of how to release boats that had gotten stuck on shoals, a problem that had probably been vexing him since he was 22, when he worked as a bowhand on flatboat and narrowly saved it from sinking. His solution was to mount two sets of bags to the side of the boat that could be inflated by bellows, increase the buoyancy of the boat and decrease the boat’s draft (the part of the boat below the water line), so that the boat could float over underlying rocks that might run it aground. Patent Number 6469 was granted on 22 May 1949. Unfortunately, Lincoln’s solution was more ingenious in the concept than in the reality. The added weight of the device increased the draft thus making it more likely that the boat would run aground in the first place, which is why Lincoln is remembered more today for his political career than for his contribution to naval architecture.
If patenting had been more developed in Lincoln’s day he might have done an IP patent search and worked with a registered patent agent to ascertain if his invention was even worth patenting in the first place, but that was then and this is now, so at least contemporary inventors have more resources at their disposal to protect, and even develop, their intellectual property.