Using Intellectual Property in Your Business to Protect and Profit

J:
Welcome to the BiggerPockets Business Podcast, show number 76.

Devin:
You have one year within which you can file a patent application. You miss that window, from the first day you do it to that year, then you now miss the window to file a patent application, you’ve donated it to the public and you can’t get a patent on it.

Introduction:
Welcome to a real-world MBA from the school of hard knocks, where entrepreneurs reveal what it really takes to make it. Whether you’re already in business or you’re on your way there, this show is for you. This is BiggerPockets Business.

J:
How’s it going everybody out there? This is J Scott. I am your cohost for the BiggerPockets Business podcast and the woman sitting right across from me, in a completely separate room so not really right across from me, is my lovely cohost, Carol Scott. How’s it going today, Carol Scott?

Carol:
Doing so well, thank you. And guess what, listeners, we have a fun-fact little brain teaser quiz for you today. Okay, get this, so the company who invented this particular product that we all know, and some of us love, some of us don’t love it, but that’s irrelevant. They recently trademarked, ready for this, the scent of this product. So I want you to listen to this and try and guess what it is. You ready?
A sweet, slightly musky, vanilla-like fragrance with slight overtones of cherry and the natural smell of a salted wheat-based dough. What could it be? Well, listen to our episode and you’re going to find out.

J:
Yeah, absolutely, yeah. That’s a little brain teaser that we do talk about in the episode, because our episode today is with a gentleman named Devin Miller and he is the founder of Miller IP Law, where IP stands for intellectual property, and he is an engineer, he’s an MBA and he is an attorney that specializes in intellectual property. And when we talk about intellectual property, we’re talking about patents and trademarks and copyrights and other things that you use to protect the things that you do in your business.
And in this episode we’re going to talk about patents and trademarks and copyrights. We’re going to talk about the differences between them, when you should be using them, what things they can protect and not protect. We’re going to talk about how much these things cost, whether you can be doing them yourself, and if you’re going to do them yourself, what you can do to make sure that you don’t screw it up. We’re going to be talking about the process and the pitfalls, basically everything there is to know about patents, trademarks and copyrights, or at least everything there is to get started knowing about patents, trademarks and copyrights. And yes, we even talk about, in the trademark section, what that scent is that a company just trademarked this week that Carol just read. So stay tuned and listen and see if you can guess what that trademark might be for.
Now, if you want to find out about Devin Miller, Miller IP Law or anything we talk about in this episode, feel free to check out our show notes at biggerpockets.com/bizshow76. Again, that’s biggerpockets.com/bizshow76. Okay, now, without any further ado, let’s welcome Devin Miller to the show.

Carol:
Devin, it is so good to have you here today and we are so looking forward to learning more about Miller IP Law and all about patents, trademarks, copyrights and all the different ways we need to protect the intellectual property of our company. So, welcome to our show.

Devin:
Thanks for having me on. I’m excited to be here and share a little bit about a lot.

J:
Awesome. Awesome. This is a topic that I get a lot of questions about and so it’s one of those things that we can tackle a little bit in other episodes, but generally, we don’t have the experts here to help us through it. So I’m thrilled we’re able to discuss just this whole topic of intellectual property in one episode.
So you run a company called Miller IP Law where you specialize, you’re an attorney that specializes, in intellectual property law. Let’s start with the really, really basics, what is intellectual property and why should we, as business owners, even care about it?

Devin:
Absolutely. So yeah, intellectual property is kind of a umbrella term, so it is if you’re referring to a few different things, everybody just refers to it generally as intellectual property. But breaking it down just a little bit, typically, intellectual property includes patents, trademarks and copyrights.
And then breaking it down just a little bit what those each are, so patents are for you to think of anything that’s an invention. It does something, it has a functionality, it’s an invention. You’ve created it. That’s what a patent covers. Trademarks cover anything with your brain. So if you were to think of a name, a logo, a product name, a catchphrase, something along that nature. Anything when you’re building a brand, really, is covered under trademarks. And then copyrights are more for creatives and so you think of books or photos or movies or podcasts or blogs. Something that’s more on the creative nature, it falls under copyright. So, intellectual property, you just kind of refer to as the blanket term that refers to all of those and then you dive into more of the specifics.

Carol:
Excellent, excellent. So how did you become such an expert in intellectual property? What is your background and how did this become your passion and your area of expertise?

Devin:
Yeah, absolutely. Short question, probably a longer answer, I’ll try and keep it reasonable. Starting out, so undergraduate I did at Brigham Young University here in Utah and I did a double, or two degrees. I did a Electrical Engineering degree and a Mandarin Chinese degree. And I kind of got to the end of those degrees, especially engineering, and said, “Oh I loved engineering but I don’t want to be an engineer.” In the sense that I didn’t want to stay on projects for months or years and be a very small cog in a big wheel and not be able to really do any of the fun and exciting stuff for a long time.
So I said, “What else can I do?” And I kind of had a crossroads. I loved business and startups and doing that kind of an entrepreneur nature and I also really loved engineering and that. And I thought the law was also, sounded interesting. So kind of put those all in a blender and mixed them together and said, “What do I want to do?” So I went off to graduate school and I did a dual degree. I got a law degree and an MBA degree. So Masters of Business Administration and law degree.
During that time, and I know this is a slight tangent but it’ll make sense as we talk, while I was at MBA school I also entered a business competition with a few other people. One of those where you all get together and nobody knows each other and you say, “Okay, we’re going to form a team.” And you get interdisciplinary, so one was a designer, one was a… I’m trying to think, an ind engineer and a materials engineer. Got them all together and said, “Let’s come up with an idea.” First year we had an idea for making gym bags less stinky, then we moved off with that so we took second place.
Came back the next year and were trying to come up with an idea and I said, “Hey, I’d love to…” We couldn’t come up with a great idea. We tossed around a bunch. I was running marathons at the time, and I still enjoy running, and whilst we were doing that I said, “Wouldn’t it be cool if you could monitor hydration? Almost like a wearable or a Fitbit.” This was in the days before… iWatch hadn’t come out or Apple Watch, Fitbit hadn’t come out and I said, “It’d be awesome if you could do that.” So, came up with the prototype, entered in the competition and took second place again. Longer story, slightly bitter about that, but nonetheless, did that.
So, that was at the time I graduated. Finished up the business competitions and said, “Well, I’m finishing up law school,” I also have this other business and I said, “Hey, I think it’s a good business.” I bought out those people and I bought business competition, they’re my partners so I could own it outright. So then I graduate and I said, “Love startups, love small businesses, also want to be a patent attorney and a trademark attorney.” So I went off and worked for some large law firms. Did patent and trademark attorney as a full-time job. Did that and then I continued the business on the side of that and I’ve done a few other startups and small businesses along the way, and continue that.
So I just really had a passion for startups and small businesses and I love the law side of, how do you then… So you’ve put in all this time and effort, you’re putting blood, sweat and tears to come up with an idea, come up with a brand. How do you protect it? How do you grow it? And that’s kind of where the genesis came for wanting to do my own businesses, protect them, grow them. I also wanted to help others. So at some point, after I’d worked for large law firms for a while, I said, “I want to do my own thing with the law firm,” so I started Miller IP Law, as well as continuing my startups.
So I know it was a short question, that was a much longer answer, but that gives you a little bit of a background.

J:
I love that. And I’ll be honest, that was part of the reason I wanted you on the show, because when you talk about IP and IP law, obviously you need somebody that has a law degree, because there’s a lot of legal aspects of it. But, just as much, somebody that understands the business side of it and how we apply IP to our business. And when we talk about patents, I have a feeling we’re going to talk about things that are engineering-related and a lot of times relate to how we actually create processes. And so having that engineering degree as well. You’re firing on all cylinders. You’ve got the law, the business and the engineering. You can basically think through all the circumstances. So that was part of the reason why I was really excited to have you on the show.
So, let’s start with patents, because I know a lot of the entrepreneurs that I work with and I talk to, they have a general concept of what a patent is, they may think they need it for their business, but there’re so many questions, there’s so much bad information out there about patents. So let’s start with that. What is a patent? When and why might we want one? What type of business owner is a patent good for?

Devin:
Yeah. So there’s a lot of questions, I’ll try to unpack them. So, what is a patent? So we talk about, it’s really just an invention. If you come up with an invention, it can be a product, it can be a widget. I’ve done it for everything from boat anchors, I’ve done it for wearables, I’ve done it for medical devices, I’ve done it for all sorts of different products. And it’s really, anything when we’re creating something, coming up with an invention that does something. That’s the genesis for patents.
But diving into when you’re going to need it, and this will be across the board for patents, trademarks and copyrights, but you’re going to look and say, “Where’s the value of your business?” Meaning, are you putting a lot of time and effort to come up with the next greatest iPhone or the next greatest whatever? And if so, you want to protect that. You’re going to dump a lot of time and effort and money and everything else in development and you’re saying, “If I’m going to do all that, how do I protect that?” Because a lot of times, once you come up with something, it’s always easy to look back and say, “Hey, that’s a neat thing, I could replicate that.” But it’s that initial person that came up with it, came up with the idea, implemented it and then built it that put all the time, sweat and effort into it. It’s easy to knock off once you can see what somebody else has done.
So if that’s kind of the focus of your business, you’re saying, “We’re creating a new product,” and it can be anything from software, electrical, mechanical or anything else, then you can view it as, “I need a patent.” So that’s kind of the genesis for where you start. Does that make sense?

J:
Yeah, absolutely. And when I think about it from a business standpoint, I see two really good reasons to have a patent, there’re probably a million, but the first two that kind of stick out in my mind. One, as you said, it protects your time, your money, your effort, your labor. You threw a whole bunch of everything into trying to create something, you don’t want somebody else to just steal it and be able to take advantage of it.
So that’s number one, and then the second piece that I think we’ve talked about a little bit on the show in the past, is that, when you have the patent, it gives you an extra ability to monetize your business. It gives you, potentially, an income stream. If you license it you can sell the technology or pieces of the technology. The patent itself, I assume, you could sell or at least sell the rights to it.
So, not only does the patent give you the ability to protect what you’re creating, but it also gives you the ability to monetize what you’re creating in a way that it can’t easily be taken from you.

Devin:
Yeah, no, absolutely. And I think that’s spot on. Those are probably the two biggest reasons. One is, “Hey, we want to protect all of the investment, time, money and effort we’re putting into this so that somebody else doesn’t just come along and rip us off.” And that’s a lot of times where people focus, but I think to your second point, intellectual property, the word, property, is something you can own and a lot of times it’s so hard. I’ve got a whole bunch of ideas in my head and we’re working it out and it took a lot of time to figure it out, but how do you monetize that? How do you actually capture value there? And most of the time you can’t sell what’s in your head but at least with a patent you can protect it and then it is an asset.
And going back just to the story I mentioned, the one company I did with the hydration monitor, we built up a product. I did a bunch of patents on the portfolio and we did end up licensing that out to another business, which is then leveraging a lot of what we did. So it absolutely became a great asset to the company. It was one of the best revenue sources for it and it could be a major part if you want to go everything from going to an Angel Investor or Venture Capital. They’re going to want to know, “How do you protect what’s proprietary? What am I investing in and how do I hedge my bets if the company goes under? Two, if I want to sell my business or acquire the license?” All of the above. Exactly.

Carol:
Awesome. And can I, Devin, ask an additional clarification question for our listeners to dig even a little bit deeper? For something to be patentable, does it need to be a physical product? So whether it’s a widget or a piece of software or a hydration monitor or whatever, or on the converse of that, could it be your processes around a business? So, I guess it’s kind of a two-fold question, what is and is not patentable and do those things need to be full-on physical products?

J:
Yeah, I’ll use an example, FedEx has some crazy, complicated ways of ensuring that they can deliver overnight. I assume that was all pretty new and uncharted. Can they use patents to protect those processes around their business?

Devin:
Yes and no. To a degree and I’ll give you a bit of a fuller answer. So back in the day, take your time machine back five years, business methods were generally, that’s almost one area where you could patent a business method. And method of doing business, and you can almost say, it was kind of the Amazon, the one click kind of an idea. And for a while there, those were pretty patentable. You had a lot of patents that, I think in reality, shouldn’t have been let through, shouldn’t have been patented. And so you almost had the court system that kind of reeled it back and said, “Well, you can’t just patent a way of doing business because it’s too esoteric, it’s too… A lot of people have been doing business for a long period of time, doing it that way and you’re coming in and stopping people. It’s really hard to search that and figure it out.” So they really reeled back on just a pure business method.
Onto your point though, a lot of times what they do is, a lot of that is technology-enabled, right? So, think of FedEx or any of them, they’ll have probably tracking on their packages; they’ll have GPS; they’ll look at the routes of the individuals; they’ll do analytics on all of that to say… I can’t remember, it’s either FedEx or UPS, for a long time they only let their drivers take right turns. They wouldn’t take them left turns because if you took a left turn they would look at it and say, “One, you have to go through an intersection and it increases our odds of you getting in a wreck. And two, you’re always having to get stuck at a light, whereas if you take a right turn you don’t have to typically wait at a light.”
So a lot of that they figure out with analytics in the backend, and so absolutely, those type of things, as you’re enabling your technology, analytics, software, those type of things, you can patent. So, generally, the ones that are most difficult are business method, you’re going to be having a difficult time patenting. You come up with the other weird ones that the patent office said, you can’t patent a perpetual motion machine. They had a whole bunch of people that keep trying to apply. They just said, “It’s not possible. If you really can come up with an idea, we’ll consider it, but quit filing patents on there.” Same thing with the cure for cancer. As of now you can’t patent a cure for cancer until they actually cure cancer.
But other than that, really, the two main gating features as to patentability, as to whether or not something is patentable, are… I guess, three. One is what’s called novelty. Novelty is basically, has anybody else previously invented it? If somebody else has previously invented it, you can’t patent because you didn’t come up with the idea and it’s already out there. The second one is more on obviousness. And so obviousness is okay, not one person created this but if you were to take two or more things out there, you put them together in an obvious way, you’re really not adding anything, you’re just combining a couple things out there in an obvious way. So, that’s when it’s not patentable.
And then the third one is kind of where it gets to a business method. If it’s something you can just do in your head or people have been doing it on pen and paper and all you’re doing is sticking it onto computer, “I want to put that onto computer, I want to patent it.” Well, you can’t just take two plus two equals four, stick it on a computer, patent it because people have been doing it in their head or pen and paper for a long time.
So, those are kind of the barring things, if you’re novel, if you’re not obvious and if you’re doing something more than just taking something that people do in their head, those are the things that you can patent. Beyond that, it’s a really open field and a lot of good areas to go after.

Carol:
Excellent.

J:
Let me ask you something because I know this is something that’s confusing to a lot of people and I know even really smart people that understand this, there’s often disagreements on this, but at what point do you go from idea to something that’s patentable? I can come up with a great idea and people often say, “I’ve got this amazing idea. I need to patent it,” and my first response is, “Well, how does it actually work?” Because, am I correct to say, you can’t just patent an idea, you’re patenting the implementation?

Devin:
Absolutely. No, I get those people all the time, they’re like, “Oh I got a great idea.” Usually it’s one step further, “Oh, I got a great idea. I just want to patent it. I don’t actually want to do anything with it, I just want to license it to everybody.” And I say, “Well, that’s great. Most of the time people aren’t just going to pay you for an idea. And even if you get a patent, they’re not just going to come pound down your door and say, ‘Oh, we want to take a license from you.’ You have to build or do more to it.”
More specific to your question, yeah you can patent an idea. Usually what it has to be is what we would call, in the legal industry, conceptual reduction of practice. Now what does that mean? That means, can you explain your idea in a level that someone else in the industry could understand it and replicate it? So if you can say, I’ll take an easy one, golf clubs. And if you say, “I’m going to make a new golf club and I think it’s going to increase your swing 10X and it’s going to make you drive it farther,” but that’s your whole idea, you can’t get a patent on it. You can’t just say, “I’d like to patent an app or a golf club that makes you have a better swing.”
On the other hand, if you say, “Now this is how I’m going to do it, I’m going to make it,” and I’m making it up, “But I’m going to make it out of titanium alloy with a mixture of aluminum and then I’m going to make the golf size, the head of the golf club this size. And I’m going to make it this length.” Then you got to say, “Now we can have the details around your idea so you can go to somebody else in the golf club making industry and say, ‘Here’s the specifications. Here’s what I want to do and here’s how I do it.’ He says, ‘Oh, yeah, I can make that. We can certainly do that.'” Get to that level, you’ve reached to where you can now go after a patent.

Carol:
Cool. So, I’ve had this amazing idea about this new golf club and I’ve figured out that if I put this very specific, very long decimal number grade something something, carbon fiber, titanium whatever whatever that it’s all going to work. And all of those amazing technical details that, of course, I would know, what is next in the process? Do I do a patent search on my own? How long does this process take? Can you please just walk me through the process of how I make my new incredible, amazing, off the charts, golf club patentable?

Devin:
All right, absolutely. And the thing is, I’ll give it to you within our process, in the sense that it does vary a bit firm from firm. So, I’ll give you some general guidelines and then, if you want to go to different firms, you’ll probably get a little bit of a difference in costs and timeframe.
So, first one is, is patent search. And that’s one that comes up a lot, “Should I do a patent search?” And I’m going to give the standard lawyer answer and if you ever know if you’re talking to a good lawyer, their answer is always, “It depends.” So, the general answer to, “Should you get a patent search?” “Well, it depends.” But I’ll give you a couple of ways of how you would decide whether or not you’d do it.
So some of the clients that come in, they have what they think is a great idea but they really don’t know what else is out there. They don’t know what others have done, they don’t know if it’s already been invented and they haven’t done a lot of research or anything of that nature. Then they’ll say, “Yeah, a patent search probably makes sense. Let’s get an idea of what’s the landscape’s out there; whether or not it makes sense to invest in the full patent application; whether or not you’re going to hit road bumps or anything else; or whether or not you have a pretty clear field to go forward.” So that makes sense to do a patent search.
On the flip side, you also have and we have other clients, they’re really cutting edge, they’re at the forefront of their industry, they know what all their competitors are doing, they keep very good tabs. And so they’re probably more expert than we are on a lot of the industry, you understand? In that case, if you already know what everybody is doing and what’s out there, a patent search may not be as applicable, because you already know what’s going to be out there and whether or not what you’re doing is unique and novel and not obvious and those type of things.
So it kind of depends on where you’re at in the stage. A lot of startups and small businesses, I’d recommend for doing a patent search, especially if you’re newer to it and you think, “Hey, I think I have a great idea but I don’t know.”
So then your question was, I think, what was the process and what are the costs be on that? So, take ours, if we were to do a patent search, we do everything on flat fees and I like flat fees, it makes it easier for startups and small businesses to budget, understand what things will cost and it doesn’t feel like the meter’s always running every time you talk with your attorney. With that, our flat fees for patent search is 750. We go out, it usually takes about a week and a half or so, turnaround time, to do that. Average between the patent industry, somewhere between a week to three weeks you’d probably be looking at, depending on the firm and depending on the firm, you’re anywhere from 750 to 1,500, depending on if you go to a large California firm or New York firm or you do a normal-sized firm or the one that’s not the huge, high-rise type ones.
Process-wise, so let’s say you go out and do your search and you say, “Okay,” it comes back and says, “Yeah, we think that there’s things that are patentable or you have a way forward.” Not a guarantee. Can’t ever tell you that it’s absolutely patentable, but it gives you a better idea of, “Hey, these are things that we don’t see that you could focus on.” Next step to the process is to say, “Okay, I’d either want to do what’s called a provisional or non-provisional patent application.” And people oftentimes don’t know what the difference necessarily is so I’ll walk you through those really quick.
Provisional is a less formal version of a patent application so it doesn’t have formal drawings, it doesn’t have all the other sections of a full patent application, but it really just focuses on what the invention is. And what it allows you to do is, you basically get one… You get patent pending, so the day you file for provisional patent application, your patent pending, but then it acts as a year placeholder. It basically gives a year to decide whether or not I want to go out and invest in a full patent application. I can go out, test it in the marketplace, do more development or anything else, taking your timeframe and then come back towards the end of that year and say, “Yeah, it looks like we’d love to go after and get a full patent application, build towards a patent.” Or, “Hey, this idea didn’t really work,” or, “We couldn’t really get the investor dollars in or whatever.” So provisional patent application, so if you take ours, the flat fee for ours is 1,700 and it takes about a three-week turnaround time.
If you were to go to the full patent application, that’s the one that everybody hears, if you listen to Shark Tank, “Well, do you have a patent or anything else?” That one is one where you’re saying, “This is a full patent application,” it takes about three to four weeks to prepare, usually about four weeks and the flat fee on ours is 5,500. And that, I’ve worked with large law firms before I started my own, costs of doing a non-provisional patent application, the full one, it ranges from, low end ones that I wouldn’t recommend, but some offer 3,500 up to about 10,000. So there’s a pretty big variability. It depends on how big a law firm, how good of a job they do, how much they make you do and everything else.
So doing that, let’s say you did that today. Come into our firm, we said, “We’ll get you set up.” Sit down with you, go through your invention and you’re good. We prepare and file a patent application. After that, then you file with the patent office. And we file with the patent office, they put it in a queue for examination. And when they examine it, first of all, it takes about 12 to 18 months to get to the top of the queue. So anticipating, you’re not going to hear tomorrow after you file, “Hey, you got a patent, it’s allowed.” It takes about 12 to 18 months before they honestly start the process. It’s the government, they take a long time to do things. Nothing we can do about that.
But once they start to examine it, they look at novelty, obviousness and whether or not you can do it on your head, the three standards. They’ll either come back and say, “Yeah, it’s patentable,” they allow the patent or, “No, it’s rejected.” And now you go back and forth. You argue back and forth or you work with the patent office to say, “Hey, you’re wrong, you’re misinterpreting what others have done. This is why we’re different.” Or, “Hey, we started out really broad and we think we said we owned a whole bunch of the real estate in this area, let’s narrow that down a bit.” And then you go back and forth and you’ll either come to an agreement and they’ll allow it as a patent or they’ll say, “No, we’re still not going to allow it,” and eventually you say, “It’s not worth arguing,” and you let it go bad.
And so that’s a few, I know that was a short question, again, short questions always get the longest answers, but that kind of gives you a bit of the process and the costs and the timeframe and whatnot.

J:
Awesome. I loved that. Thank you, that was tremendously informative. I know that when it comes to any types of IP, intellectual property, there’s always two routes to go. You can hire the professional and you can pay a little bit more and you’ll get what you paid for, but there’s some people out there that probably are thinking, “I’m in startup mode, I need 30 patents. I can’t afford to go hire somebody.” And we’re talking about multiple different types of IP here, so the answer may be different for patents and trademarks and copyrights, but for patents specifically, can you talk about, is that something that business owner or inventor can do themselves? What’s the risks? What’s the downside? On a scale of one to 10 where do you put how important it is to hire somebody that can do this versus doing it yourself and what would the cost be if somebody wanted to go that route?

Devin:
Yeah, and I’ll fully recognize that I’ll probably give a bit of a biased answer. You’re asking a patent attorney, “Should you do it yourself or hire me,?” it’ll probably be me but I’ll try and give you… I usually try and answer, “What would I do if I was in your shoes?” Startups and small businesses always have more things to spend money on than they have money to spend and so I get that there’s always that pressure of trying to figure out where to put the money and what can I do myself?
And so with that, I would put it like this, it’s better to have something than nothing, so if you absolutely can’t afford anything and you want to do it yourself, that’s probably better than not having any protection at all. And so, if you were to do it yourself, you can prepare… the patent office does allow you to do what is called pro se or just do it against the actual applicant or inventor and file it yourself. Provisional patent application you could probably prepare and file yourself for a couple of hundred dollars and if you were to do a non-provisional, a full patent application, that’s probably, I’d have to look up the exact numbers, but probably seven or 800 dollars. You can do that.
Now, the drawbacks to it are a few, one is if, sometimes if you admit something in your patent application saying, “This is how I say the prior are, what others have done and really, it’s something that you’ve done and you’ve invented but you characterize it or you make it sound like it’s something that’s already been done, that can work against you. They can say, “Hey, you already said somebody else has done this, you can’t patent it.” They take your admission as, you can’t patent it. So you can shoot yourself in the foot a little bit that way.
The other way that it oftentimes is a drawback of doing it yourself is that it gives you a bit of a false sense of security, in the sense that you think you’re covered, you think that you have your invention that, “Hey, now I can go out and start selling it and start promoting it and everything else.” Only to find out you didn’t cover the areas you need, you didn’t describe it well, you didn’t provide the level of detail or anything of that nature. And so you’ve got this kind of, “Hey, I’ve got a patent pending, I’m good to go,” and introduce it, only to find out that you’re not very well covered, you don’t have that coverage and now you’ve gone out and other people have seen your idea. And they’ve thought, “Hey, that’s a great idea, I’m going to do that myself.”
Last thing is, the other thing is, you think of whether or not you’re… Even before you file a patent application, whether it’s yourself or with an attorney, the one thing that people often miss is, you have a year deadline from the time you ever introduce your ideas to the public. So let’s say today I go and do a conference or I do a kick-starter campaign or I go pitch it to a whole bunch of investors. Any time I put it out in the public, you have one year within which you can file a patent application. You miss that window from the first day you do it to that year, then you’ve now missed the window to file that patent application. You’ve donated it to the public and you can’t get a patent on it.
So that’s kind of one other thing that people often don’t think about is, they get a year or two down the road and they say, “Oh, I should probably patent something now.” Whether or not it’s a patent attorney or not, they miss that year window, they come to an attorney or they try to do it themselves and then they get this rejection saying, “You can’t do this. You’re not able to file a patent.” And then you’re saying, “Well, I want to do something. We’re making a lot of money now, off of this.” And so that’s some of the drawbacks.
Going back to the short answer, something better than nothing but an attorney is going to make sure you don’t miss a lot of those got yous, they’re going to make sure it’s done right, make sure you get the protection that you’re wanting, make sure everything is covered for you and walk you through the whole process. So, if you absolutely boot-strapped, file something, it’s better than nothing.
If I were to give the one other piece of guidance, put as much detail as you can in there. Sometimes people are saying, “Well if I put a whole bunch of detail and somebody finds out, they’re going to know how to do it.” It’s better to put the detail in there, it’s better to have it there, because then at least you’re fully describing your invention and it doesn’t create problems of not having enough detail there and getting your patent rejected that way. Plus, if you do a provisional patent application, it never becomes available to public. Nobody ever sees it until you go for that non-provisional.
Those are a few thoughts and questions on kind of DIY, do-it-yourself, hire an attorney and when it would make sense.

Carol:
Thank you for all that clarification. I feel like I’ve learned more about patents in the past 10, 15 minutes than I’ve known in my many, many years of business. So thank you for all this detailed info, it’s fantastic.

Devin:
Absolutely.

Carol:
Just one more question to wrap up on the patents discussion, I’m curious, do patents ever expire or, conversely, do they last forever?

Devin:
I’m sure people would love it if they lasted forever, especially pharmaceuticals and they put a ton of money in R&D so they always… You think Aspirin. Aspirin now has been out long enough that it’s no longer patented. Aspirin was patented for a while. You think of all the drugs out there, they are very aggressive on patents because they spend billions and billions of dollars.
Short answer is, patents, you have 20 years from the date that you originally file your patent application, within which it’s enforceable. So it’s kind of a trade-off with the government. The government’s saying, “If you disclose all the details of your invention it allows people to understand it. People can build on top of it, they can improve on it and they can move it forward. So because you’re in your patent, providing all that detail, we’ll give you what will be a monopoly where you’ll be able to box people out. We’re not going to give that to you forever, we’re going to give it to you for 20 years. Once you get to the end of the 20 years, then it’s open to the public. Anybody can use what’s in your patent or anybody can build on top of it, anybody can proceed forward.” So you kind of have that trade-off. You get 20 years where you get exclusivity to it, once you hit the end of the 20 years, anybody can use it.

J:
Okay, so that explains why Coca-Cola doesn’t necessarily patent their secret formula and KFC doesn’t patent their 20 herbs and spices, because it’s worth it for them to keep it secret because they don’t want to lose that or have that information out in the public domain 20 years later when it expires. That makes perfect sense.
Let’s move onto trademarks. So that was great on patents but trademarks are another important aspect of intellectual property that a lot of us, as business owners, really, really care about. I want to tell a story. Yesterday I was just searching my newsfeed and I read an article that I thought was tremendously interesting about a patent that was just, what’s the word? Approved from the patent office. And I’m going to read what, basically, the patent said because I thought it’s so interesting what this was.
So what the patent said was, “A sweet, slightly musky, vanilla-like fragrance with slight overtones of cherry and the natural smell of a salted, wheat-based dough.”

Devin:
I kind of want to see what that smells like because I can’t even imagine that one.

J:
So that was the patent approval for the smell of Play-Doh.

Devin:
All right.

Carol:
Weird.

J:
As of, I think it was just yesterday the trademark office approved a trademark for the smell of Play-Doh. So that leads me to a million questions. I thought trademarks were just for logos or whatever. Apparently that’s not the case. So can you tell us, in general, what a trademark is, when we might want to use it for our business and what it can and can’t cover?

Devin:
Yeah, so trademarks, the very core and then we’ll get into a few of what you can and can’t do, it’s anything that identifies your goods or services. Goods are products, so if you’re selling a product, any sort of product, that’s what we call a goods. Services are kind of now, if you’re offering a service so attorneys offer services, we do it, if you’re a CPA or an attorney or a finance person or anything that offers services. Anything that identifies your goods and services, that’s what you can trademark.
So within that, that’s a lot of times, what identifies your goods or services? So let’s take Nike as an example. Nike has a trademark on the word, Nike, everybody knows that if it’s athletic wear, apparel or anything else, it’s Nike. Nike is selling the product and so they are doing it. Same thing with the Nike swoosh, those type of things. So easy on the words, name of a company, brand of a company, name of a product and you could do name of a company and name of a product. So Apple is the name of a company, name of a product is iPhone. And they have trademarks on both. So anything that identifies who is selling this, who’s the person that’s providing the product, providing this service, that’s trademarkable.
Now, to kind of get more into the Play-Doh and others, so some of them, you have a few examples, Play-Doh and I didn’t know that that was the description. I knew that you could do smells, but let’s say you have smells and everybody, when they smell that smell, they’re, “Oh, that’s the smell of Play-Doh.” Then you could technically, it identifies your brand. It identifies your good. It smells like Play-Doh. Everybody that smells that, they don’t think it’s somebody else’s smell, they know it’s Play-Doh.
Another one that they’ve done is sound, if you think of the old, and now it’s going to date people a little bit, when they did the ping when your computer turns on and it makes a noise and you have different ones for Windows and Apple. Those are trademark sounds. So they trademarked the sounds because everybody knows that. Same thing when you did, “You’ve got mail,” that type of thing. That was another one because everybody knows that was with AOL. And people that didn’t ever use AOL or you got mail, you’ll have to go look up what that is.
A few other interesting ones are, you can also trademark colors sometimes. So you take the Cadillac and I think it’s Mary Kay, I’d have to double check. They’re the pink cars, I believe so, and they trademark a specific color of pink because people who drive around in those cars and if you got so high up on their selling chain that you’re so high up in the company, they would give you a pink car. And they trademark the color pink.
One of the other ones, and then I’ll give a break, is if you did football. So I can’t remember which team it is now, I’d have to go look it up, they wouldn’t do the normal green field, but I think it was red. It was the color of red. They’d always do their football field as red and they actually trademarked it because whenever you saw the red football field it was that team. And so all of those are identifying your brand. Identifying the source of goods or services so that when people smell it, they hear it, they see it, they see the word or anything else, they say, “It’s that company that’s selling it,” or, “It’s this company that’s providing the service.” And that kind of gives you what trademarks are.

J:
Awesome. Yeah, and I know like when you say the colors, I actually remember reading a year or two ago, UPS has trademarked their brown color and Target has trademarked their red color and that’s really interesting. So who is allowed to trademark what? Let’s say we have a politician that goes out tomorrow and says some crazy thing on TV that ends up-

Carol:
Did you have… I’m sorry, J. Does it have to be about politics? Do we have to go there?

J:
Okay, no, no. So let’s say we have some artist, some musician-

Carol:
Much better.

J:
That goes out and says something crazy on TV tomorrow and it ends up being a slogan that like, “I want to put that on a T-shirt.” Am I allowed to trademark something somebody else said? Are they allowed to trademark? Does it become too late once it’s out there and people are using it? What am I allowed to put on a T-shirt today? I see you have a Miller IP Law plaque in your background with a mark on it, presumably a trademark.

Devin:
And a hat.

J:
And a hat.

Carol:
And a hat and a shirt. He’s got all the swag, it’s awesome.

J:
So, I assume you probably have that trademark so I can’t create a Miller IP Law shirt, or maybe I can, I’ll let you tell me. But let’s say you didn’t have a trademark on that, let’s say you were just using that and you never bothered trademarking it, could I then put that on a T-shirt and sell it? So what are the rules about what I can trademark, what I can’t trademark, who can use a mark, when does it stop being allowed to be trademarked and all those things?

Devin:
Right. There’s like 20 questions. I don’t know [crosstalk 00:38:11].

J:
I know, I know.

Devin:
But you gave me also, the hardest examples, which make for a fun conversation so, T-shirts are honestly, and a lot of apparel are the hardest one to get trademarks on. In the sense that people oftentimes, on apparel they’ll put a really cool catchphrase or they’ll put a cool design and then they say, “I want to trademark it.” And most of the time, most apparel you can’t trademark because it’s not identifying the source of goods or services. In the sense, when I see a T-shirt with a funny saying on it, I don’t think that this is sold by Carol, I think it’s just a cool shirt. I don’t know who sells it. I don’t really care. So it doesn’t identify a source of goods or services.
The only exception to clothing is if it’s more if you see, pointing to the wrong side, if you did the logo or a tag name. A polo shirt, they have a little polo guy on there and it’s not that’s it’s hey, it’s not a cool design, it’s to identify, “Hey, this is a polo shirt.” So if it’s that kind of a thing, you can do it. Same thing with the hat. This is my logo. It does identify a source of goods or services, therefore you could do it, but if I was to just put a cool design on the hat, you can’t trademark it because it doesn’t really identify anything other than it’s a cool design.
The other one that you gave me was also a hard one is, I really can’t trademark my own company name, Miller IP Law, and let me give you the reason why. Last names, unless you’ve reached the level of infamy where everybody associates your last name with that individual. So Michael Jordan, everybody knows it’s the basketball player, he’s famous enough. If you say, “Michael Jordan,” you don’t say, “Who is that?” But those are the type of things. Or Kim Kardashian or someone. I don’t know, pick your favorite celebrity, Tom Cruise. I don’t know which one people like so I’ll just throw out a few.
But if you have that level of infamy you can start to get trademark around your name because everybody associates that name with that individual. For the 99.9% of the rest of us, nobody knows who Devin Miller is or who Miller is and there’s a whole lot of Millers out there. It’s certainly a common last name and so I can’t stop other people from using their last name with their company any more than they can stop me using my last name for my company. So generally, names, last names such as Miller IP Law, are going to be hard.
The last one I’ll tell you that’s hard and then we’ll switch as to what you can trademark is, if something is really descriptive. So I’ve got two problems with the name of my law firm. One, it has my last name in it and then it has the word, IP Law in it, which is, really, just describes what we do. We do IP Law. We do intellectual property law. And so the problem is, is if you do somethings that’s really just descriptive and I use the example of, let’s say you wanted to go out and sell the fruit, apples. You wanted to go out and start your own company and you sell the World’s Best Apples. You’re going to say, “I want to name my company Apple.” You can’t do that because everybody refers to the fruit, apple, as apple and you can’t stop everybody from using the term, apple to describe the fruit. Now, you can use Apple as an electronics company because nobody thinks to call electronics Apple. Everybody doesn’t describe a smart phone as an apple type of a thing and so you can do that.
So, one, if it’s a last name, it’s going to be hard, or any name, period. Unless you add something to it, but just as a name, those are going to be hard. Two, if it’s merely descriptive. If you’re trying to trademark apple when you’re trying to sell fruit, that’s going to be hard. And three, clothing is going to be hard unless it’s a specific insignia or a logo or something that does identify your brand or goods or services.

J:
So, not to belabor the point, but I’m curious, so you can’t trademark the phrase, Miller IP Law, for reasons that you just described, but I’m looking again, at the plaque in your background and it says, Miller IP Law and it has a specific picture with it and the picture is oriented, for those who are listening and aren’t watching this, the picture is oriented in a way that’s relative to the name of the company and then there are a few dots below it.
So is that full image, that picture, independent of the phrase, Miller IP Law, can you protect, with a trademark, that image that nobody else could take that exact image and use that to represent their own stuff?

Devin:
You know what you’re talking about. Absolutely, yeah. So yes, the short answer’s yes. So, there are two different types of trademarks. There is what’s called a word mark and a design mark. What I just went through, it was a lot of word marks, meaning if it’s just the phrase, regardless of the font and the color, if you’re just wanting to protect a word, then you’re going to say, that’s one type. And when I talk about, you can’t use your last name or you can’t use something merely descriptive, that’s a lot of word marks.
Now, you talk about our logo and I’ll give you the… The slanted thing is the chalkboard that says innovation and then the chalkboard is slanted coming up from Miller IP Law, kind of as a, “All good ideas start on the chalkboard,” right? So that’s kind of, “Innovation starts on the chalkboard.” So hence the background of the logo. But that one would be more of a design mark. So it’s not just the name or the word, but to your point, it has the chalkboard, the slanted, it has how we designed the chalkboard, it has the dots underneath and there’s a lot more design aspects to it. It’s a lot more fanciful and it has a static nature to it.
When you add those into it, that’s a design mark and then you can start protecting it but what I’m protecting is less on Miller IP Law, the word, but more of the design as a whole. And so then, what am I protecting? Well, somebody else could go do a different design for Miller IP Law, they could do a completely different logo and they’re probably okay. But if they’re to take that same or very similar design then I can trademark that and other people can’t use it.
The standard for figuring out, how close can I get to a trademark or somebody else’s trademark or not, is really, what they use is called, confusingly similar. Confusingly similar basically means, if I were to go out and I see two products and they have similar things and I couldn’t tell who was selling what. So I couldn’t tell if Nike was selling this or Mike was selling this and it looked very similar, then I don’t know who’s selling this, I don’t know if it’s this brand selling it or this brand, it’s too confusingly similar. Customers can’t differentiate it and you start to infringe people’s trademarks.
On the other hand, if it’s different, if it’s different design, people aren’t going to be confused, they know, “Hey, this product is sold by this company, this product is sold by this company,” then absolutely, you can go, you can still get Miller IP Law you just can’t copy the design.

Carol:
Love it. And so, I think this is so great and so very relevant. If I’m understanding correctly, it sounds like so many components of trademarking really have to do with the overall elements of your brand, which again, I think is very relevant. There are so many people who are placing so much time, energy, resources and such an emphasis on branding not only their companies, but themselves. So let’s talk about what is this process for getting these elements of your brand, for getting all of these things trademarked. And would you say, is this process easier or more difficult compared to patents?

Devin:
Yeah, trademarks are less expensive and easier than patents. So, not necessarily more valuable, it depends on the company, but certainly, from a process side, are easier. So starting out with the process, so trademark, general cost if you do a DIY type of a thing you’re probably a couple of hundred dollars to file a trademark. If you’re to go to us, we do it for 750 as a flat fee. If you were to go to some of the big firms like I used to work with, you’re upwards of 1,500 or 2,000. So that kind of sets you the price range of where you’re looking at.
As far as the process, so what you’re going to do, you would look at two primary things as far as what you’re going to do to prepare your trademark application. One is, you’re going to say whether or not I’m a word mark or design mark. You’ve got to decide. You can protect both. As an example, Starbucks has a word mark on the word, Starbucks, they also have a design mark on the mermaid that goes on the cup and everywhere else. They have it on both. Nike has it on the word, Nike, they also have a design mark on the Nike swoosh. So you can protect both.
Let’s figure out where your brand is and that’s always one, and I’ll get to the rest of it, but that’s always one question that people ask is, “Well do I do a design mark? Do I do a word mark? Do I do both?” And I usually say, “Well, certainly, if you have the money and budget I’d do both.” But really, if you’re only able, if you have the budget, if you only have the limited time and budget to one, figure out where your brand is, meaning, are people going to look at the word that you’re going to do and that’s what they’re going to associate with your brand? Or are they going to look at your logo and the design and the aesthetic nature? Is it the Nike swoosh or is it the word, Nike? Which one is it that you’re really going to build your brand around and that’s what you got to decide.
So decide which type of trademark application you want, or both, and then the second thing you have to do as you’re going through the process is, define your goods or services. So, trademarks work that when you file your trademark application you have to say what type of goods or services you’re going to use it for. So, theoretically, Nike has the trademark for the sports apparel, shoes, apparel, workout gear. They don’t have a trademark for Nike to use it for automobiles. So theoretically, you can go start Nike Automotive and you’re not going to infringe on their trademarks. Now, I wouldn’t recommend it because Nike’s a huge brand and they’ll probably come after you anyway, but theoretically, you could go start Nike Automotive because it’s different types of goods or services.
So figure out what type of mark you’re going to want, design mark, word mark, what you want to protect and then types of goods or services you’re going to use it with. With those two things in hand, then you would prepare a trademark application. General turnaround time, ours is about two to three weeks to prepare one. That can range, usually somewhere, with most law firms, they’re two to four weeks, somewhere in that, to prepare and file one. You prepare and file it, once you do it, then you get put in a similar queue like the patents for examination. You don’t have to wait quite as long, it used to be about six months, is what I would say. They’ve gotten a little bit quicker. The government did something right, so good job for them. They’ve got a little bit quicker so now it’s usually somewhere more, three to six months. So they’ve got a little bit quicker.
You’ll get put in that queue for examination, they’ll look at it and they’ll look at it, really, for that confusingly similar standard, “Are there any other trademarks out there that, if we allow your trademark it’s going to cause confusion? Are customers, if they see both brands, is it going to cause that confusion.” And when they do that examination, they’ll say, “No, it looks like there shouldn’t be any confusion and we think you’re fine. You can go ahead and register your trademark,” and it goes through the process.
Or they’ll come back and say, “No, we think that there are these other brands out there that are going to be confusingly similar and people aren’t going to be able to distinguish,” and they’ll give you a rejection. Kind of similar to patents, you have an opportunity to respond back. You can say, “No, we’re different spelling. Our design is different. We have different goods or services. Customers are different, different places we sell at.” Make all those different arguments depending on the circumstance. And you can do that and then you’ll go back and forth and you’ll either convince them, yes, you’re different or no, they still believe you’re confusingly similar and you’ll have to rebrand.
You didn’t ask the question but I’ll give you the answer anyway is, the thing is to do, on trademarks, is to do it earlier. The worst situation to get in is, building your brand for years and then say, “Okay, we built a brand around this. Everybody’s starting to know us, we should probably trademark it.” You go out, go to get a trademark and you find out somebody else has already trademarked it, it’s already out there and now you’re saying, “What do we do? We built the brand around it, how do we proceed then?” And now you’re either having to go to the people that own it and get a license or try and buy it. You’re having to rebrand your company and change the name or change the logo, which can be a lot of time, money and effort, especially if you built a brand and people are starting to follow it.
And so, usually, on trademarks you’re better earlier than later, to be able to go and see, do we get a trademark? Go through that process so if you have to rebrand, if you can’t trade with the trademark, you can do that when you haven’t spent years building it and a lot of time, money and effort.

J:
That’s great. It’s so funny because that was going to be my next question, which was the timing and first use. And so let me see if I have this right. Let’s say there’s a business, let’s say I want to start a restaurant and there’s a restaurant in my town and it has the name Scooby Doo or no, I guess that could be already trademarked. Scoobidy Doobidy Doop, whatever it is and it’s a really well-

Devin:
I already want to go to that restaurant [crosstalk 00:50:26].

J:
Exactly, it’s a great restaurant. Everybody knows Scoobidy Doobidy Doop. It’s got a brand, it has a design that everybody knows and it’s a popular restaurant and I find out, I do a trademark search and I realize Scoobidy Doobidy Doop was never trademarked, their logo was never trademarked and there’s a shop that opens up or a space that opens up right next to them in a retail strip center. Can I go in and open a restaurant called Scoobidy Doobidy Doop and trademark the name and trademark a logo that looks exactly like theirs and then they’re just screwed because I, even though they’ve been using it for 50 years, I went in and I actually tried to protect the mark before they did. Who’s protected there?

Devin:
First of all, I love the name and as long as you sell any sort of good food I’m your first customer. Let me know when you actually open up the restaurant. That’s a good question. So you’re giving the scenario, let me maybe relay back to you, you’re saying that the person next door never trademarked it, never did anything with it. And that’s a lot of times what happens. You start out, sometimes you say, “Hey, we just want to be a local brand,” or, “We’re a mom and pop shop. We’re just going to serve the local community. We really have no aspirations to become a big brand.”
Sometimes it stays that way, sometimes you say, “Oh, look. Everybody loves us now we thought we were going to stay mom and pop but we’d like to franchise.” But let’s say you stick with that mom and pop shop and they never trademark it and then you come up and you say, “I want to build 1,000 restaurants across all of the U.S. and I want to trademark it.” Where that falls in is kind of in the middle, in the sense that the people that are using it first get to keep using the trademark for their geographic location.
So let’s say that the one that you’re building next door has been there for 20 years and they’re in Los Angeles, California, as just an example. Then they can continue to use that trademark in Los Angeles, California. They have some inherent rights that are called common law rights or state law rights, that they get to keep using it for that geographic location. However, let’s say now, you went and filed the trademark on yours, you say, “I want to go nationwide, I want to be the biggest thing ever. I want to be the next Dominoes or Pizza Hut or whatever,” and you set up. Then you trademark it, you get a trademark for everything outside of their geographic location, meaning, you can’t go into Los Angeles. They already have the common law rights there, but they are then stuck. They can’t grow outside of that area that they’re currently in and vice versa, you can’t go into that area they’re in, but you own it across the rest of the 50 states and they can’t go get it in the rest of the 50 states.
There’s a little bit of caveats and a little bit more detail, but that’s a fairly general answer as to how it works if you’re a mom and pop shop, you can keep going where you’re at if you’re the first one to use it. Vice versa, somebody else can go trademark it and get everywhere else.

J:
That’s awesome. Okay. And I think that answers a lot of questions and it’s basically, a good reminder for everybody out there that, don’t wait too long if you have a brand, whether it’s a physical brand or any other type of brand, don’t wait too long, because it doesn’t cost that much money to protect it and there’s more downside to waiting than there is upside.
Okay, we’re heading into about 50 minutes here. I want to touch on copyrights before we end and I know that copyrights are probably less applicable to a lot of business owners out there, maybe I’m wrong. But could you take us through a little bit about, as business owners, when we might care about a copyright and what types of things are versus aren’t copyrightable?

Devin:
Yeah, absolutely, and I’m going to flip your question and answer what’s copyrightable and then why you might care. So, copyrights are for creatives so if you were to think of books, if you were to think of photos, or if you were to think of movies, you were to think of podcasts, you were to think of all of those things, those are all creative. So those are the things that you can copyright. Now, copyrights are a bit different in the sense that you have some inherent rights when you create the copyright. Meaning, at the time you create it, the time you make your painting, the time you do your sculpture, the time you write your book, you have inherent rights that are copyrighted.
The differences between a copyright and a registered copyright is, now you go register it, then you put it on file with, it’s really the Library of Congress, is where it goes. And it goes on file, it shows the time and date that you created it and it also allows you to, more often, go after damages for people that infringe your copyright. So, that’s generally what you do to copyright it. It’s pretty simple, 350 is the flat fee and that’s pretty standard. That’s what our fee is and it takes about a week to two weeks to do a copyright registration so they’re fairly cheap and simple and straightforward.
Now, to your question, when should you copyright, is a different question. In the sense that everybody has photographs on their website, whether you take them yourself or you do that. You have texts that you put on your website or you write other material. So everybody creates a whole bunch of copyrights, doesn’t mean you need to copyright it all because that would get exorbitantly expensive and it doesn’t have a lot of return. Really, what you want to copyright is, if you’re in those industries, so if you are selling a book and that’s where you’re making your money from or if you’re a photographer and you have really famous pictures. Or you make a movie and everybody’s going to go see your movie. Those are valuable, so then you want to copyright that because then it does have that value.
On the other hand you’re saying, “Yeah, we got a picture on our website and it’s different to everybody else, but it’s not really that valuable or everybody could come up with their own picture or find something similar.” So it’s valuable in the sense, I like it for my website or again, I’m just using that as an example, but it’s not really valuable in the sense that everybody’s going to demand that they want to use that specific picture. Then you probably don’t need to worry about it.
So I usually kind of gauge it as, are you building a creative something that you want to sell to a lot of people that people are going to want to buy from you, they’re going to want a license from you or otherwise use, then you’re going to want to get a copyright. For the other people that are just saying, “Hey, yes, we have photos or we do videos or we do recordings, but that’s not really…” it may be that then you don’t need to get a copyright. And that almost goes in between brand versus copyright.
And so, take your podcast for example. Your podcast is awesome, everybody loves it, everybody wants to listen to it and it’s going to be number one, it’s going to beat out all the other podcasts that are out there, someday, right? That’s always the goal. And so you take that, well is it really, any one given episode that you’ve recorded that’s the value of your podcast or is it the brand of your podcast? Meaning, is it really everybody is listening more to, “Hey, this is the name of the podcast, this is the brand and this is what I follow,” and that’s where the value is. Or is it, “Hey we’ve got this one episode that got 10 million views on YouTube and is blowing up.” Then you’re going to say, if it’s that 10 million views, you may want to copyright it. If it’s really more, hey, it’s really the brand and that’s where the value is and we got the repeat customers coming because we offer great content, then it’s more of the trademark.
So that’s kind of when you start to delineate, “Do I do a copyright? Do I do a trademark? Do I do a patent?” Is based on where your value is. Does that make sense?

J:
Yeah, that does make sense. And just, a real quick question because I’ve always told, I’ve written a few books and I’ve always been told, “If I want to protect, through copyright, my book, one, I can register the copyright.” And I do, but everybody always tells me, “Take a copy of your manuscript, stick it in an envelope and mail it to myself.” Is there any-

Devin:
Oh, that is the worst… Don’t do that.

J:
Oh, okay.

Devin:
That’s the short answer. And you have that thing that saying as far as patents too, they’re like, “Well, if you just write down your idea and then you put it in an envelope and do it certified mail and they’ll stamp the date on it, you’ve got all the same legal rights on it as the poor man…” It’s a myth. So I would not recommend that to you or to anybody because that’s a terrible idea and you don’t have any protection. I guess, it’s better than absolutely nothing, so if you’re going to do nothing I guess you could do that but you have virtually zero protection, it really doesn’t do anything.
So, where the myth began or at least this is my theory as to where the myth began, is, patent system in 2013 changed from what you, and it’ll circle back to copyrights, but changed from a first-to-invent to a first-to-file system. So before 2013, whoever invented the idea first, as long as you could show the when you invented it, when you came up with it, then you could actually go and predate people, even if they file the patent first. If you could show you invented it first, you could still get the patent on it.
The U.S. was alone in that system. 95% of the rest of the world was the first-to-file system, meaning, whoever files on the invention first, gets the invention first. So they changed in 2013, to be like the rest of the world and you have to be the first to file. But where they myth came was, people were saying, “Well, the way that you prove that you were the first to invent it was that you put it in an envelope, you’ll mail it to yourself, you’ll never open it and you’ll have that timestamp on it and you can show that you’re the first one who did it.
Didn’t work that great but that’s kind of where the myth came up with. And so, with that, it kind of perpetuated to, now everybody just thinks if they mail something to themselves and they have that date of their stamp on it, then they’ll be okay. Don’t do it. It doesn’t give you any protection. If it makes you feel better, I guess you could do it but you don’t really have any legal protection.

J:
That’s awesome. Okay, this has been absolutely amazing discussion of patents, trademarks, copyrights. I thought I knew a lot going into this but I have learnt so much in this last hour so thank you for that, Devin. But I think we’re getting to the part of the show that we call, the Four More, and that is where we ask you the same four questions that we ask all of our guests. And then the more part of the Four More, is where we’d love for you to tell our listeners where they can connect with you to find out more about you and your firm. Are you ready for this?

Devin:
Absolutely.

J:
Okay, so I am going to take the first question. What was your very first or your very worst job and what did you take from it that you’re still using today?

Devin:
I’ll go with very first because I don’t know if I ever had a job that I absolutely hated. There are ones I liked better. First job I really ever had, it was for a, it was a laser engraving and products company and basically, you’d put in a part; you’d push a button; it would engrave it; you’d take it out and you’d put it in the next part; you’d push a button; you’d take it out. It was an easy job and it was the first job I did. It wasn’t all that gratifying, I didn’t do a whole lot but it was, somebody had to do it and so that was, I was in high school and that was my first job. Putting in a part, pushing a button, taking it out, putting it in the next part, pushing a button and taking it out. And I got paid decent so I can’t complain.

Carol:
That is so much fun. Okay, for a second question I’m going to change it up just a little bit. I think there’re a lot of things unfortunately we didn’t even have a chance to touch on. I know, Devin, you’ve talked about, you have been part of many startups, many hugely successful startups. You are absolutely an entrepreneur at heart. It is absolutely in just the core of your being. You run four businesses. You have four kids under the age of 10. You coach Little League, you do all these things at the same time. So my question, right now is, what type of advice, just one piece of advice, do you have for other small business owners who are trying to just do it all? To serve your family, to serve your business and just do all of those things to be the best person you can be.

Devin:
Yeah, so my advice, there’s always fires that are going to need to be put out, meaning, I’ve done, as you’ve mentioned, several startups. I’ve worked with a ton of startups and inevitably, the problem you get with family, with time for yourself, if you’re a religious person, with religion, is that business always has fires to put out. There’s never an end of the fires or the things that you have to get done and it always feels like those are the ones that are the most urgent. And they are, in the sense that they are the easiest ones. I can get this done today, I just need to get this taken care of real quick.
But there’s always more fires to put out and if you’re always putting that as your top priority you don’t have the time for the family, you don’t have the time for yourself, you don’t have the time to make sure that you’re there as… You mentioned Little League and I love to coach that. You don’t have the time for your spouse and you never go out on a date and everything else. And you sacrifice everything at the sole expense of startup, then you don’t do it.
So my general advice is that you have to prioritize how many fires are you going to put out or how much you’re going to do in the business, and then you’re going to have to at one point, as you’re there with your workday, to say, “I’m going to have to do this tomorrow. I need to step back and do that.” And that was the lesson that took me a while to learn, in the sense that, at the start of your career when you start to get startups going, you just want to be successful and you’re putting in all the time and effort and you say, “I’ve just got to hustle,” and you do have to hustle. Don’t get me wrong. It takes a lot of time and effort, but you also have to say, “I have to find a balance. I have to say, ‘I can’t devote everything in my life to that one thing at the sole exclusion of my family, my life, my religion or whatever else there is out there.'”
And so, my general advice is, there’s always fires to put out. Put them out what you can today, there’ll be more fires to put out tomorrow and make sure you get that balance.

J:
I love that. That is a fantastic piece of advice. Question number three, and I’ll leave this open-ended. Recommend a book to us. And it can be in an area that you specialize in or it can just be a business book that you love. What’s a book that you would recommend to our listeners?

Devin:
I’ll give you two books, and I know you only asked for one but you get a bonus.

J:
That’s great. Great.

Devin:
So two books that I love, backing up, I love to read books. I never have as much time as I wish I had to read them but I do enjoy them. Side note, when people ask what is my hobby I always tell them my hobby is startups because I just enjoy it and love it. So I always tell you, when I read books I love to read business books, startup-related books. I don’t read a lot of fanciful books. I’m not a huge Harry Potter book, I don’t even know what the current fantasy book is, but any of those I don’t read a lot.
So the two books I would recommend are the ones I enjoy. One is by Dave Ramsay and it’s called EntreLeadership. And it kind of is a mix of entrepreneurship and leadership and how you combine those together. And really, how you need both somebody that’s an entrepreneur and a leader to drive a company into growth. And so I love that book, it’s a great book. The second one that I really enjoyed is called, That Will Never Work and it’s by Marc Randolph, or at least it’s about Marc Randolph. And if you don’t know who Marc Randolph is, it’s the person that originally founded Netflix. He was the one that came up with the idea. He was the original CEO, later moved over to Reed Hastings, which is now who most people associate with Netflix.
But originally, Marc Randolph, he was making an exit from a previous company and he had the opportunity to drive back and forth with Reed Hastings. They had to go over the mountain, they car-pooled together and so he’d always pitch ideas off of him and say, “Hey, let’s do…” And I think one of them was, “Let’s do a subscription service for shampoo that we mail people.” Or that service and he’d say, “That would never work,” and they’d go on and on. And then one day he came up with the idea for Netflix. And that day it was DVDs-in-the-mail, I know everybody thinks streaming service, Netflix started with mailing DVDs in the mail so you could get it. And it was, “Hey, why don’t we take a company, DVDs-in-the-mail, and mail them out to people and then they can have it and they don’t have to go out and rent them and that.
And Steve Hasting was saying, “Oh that will never work.” And Marc said, “No, that will work.” And they eventually tested it out, figured it out, got it going and now it’s Netflix as everybody knows it today. But it was really with the idea, originally, he was told, “That will never work,” and then how he actually got it to work, how he built the company, how he grew it. The ups and downs they went through. So I just love that book. It’s a really interesting book, how Netflix got their start.

Carol:
That is so great. And isn’t, That Will Never Work, just the most motivating sentence that we entrepreneurs can ever hear? Like, “Oh, yeah? Let’s go. We’re going to-”

Devin:
I’ll prove you wrong. I’ll show you.

Carol:
I will do it out of spite, if for no other reason. It’s so true. Okay, Devin, our last question for the Four More is one of my favorites, so tell us about an experience or an item or just something in your personal life or your professional life or whatever, that you have splurged on along the way that was entirely and totally worth it.

Devin:
I’ll give you the thing I can think of most recently that I splurged on. So, backing up, when I was a kid, 15 years old, me and my dad restored a ’67 Camaro. So I grew up and I loved cars, it gave me an appreciation for old vintage cars and I loved that. So that was back in the day, that’s what I built through high school. It originally, it sounds like a cool car, it was a cool car, it needed a lot of body work so it didn’t look that beautiful but I loved it. And now I still own it. It’s still in my garage today and it’s still a cherished possession.
With that, I wanted to have something that I could do, similar with the family. That we could have something that was fun, that was a memorable vehicle, we could go out on outings and just do something that was not necessary but would be memorable and fun. So we went out and we got an old VW bus, it’s a ’72 VW bus. We fixed it up, had somebody else help us because I couldn’t do it all but we fixed it up. And that was a complete splurge, just a fun vehicle we can take on vacation, take on family drives. If we want to go on a hike we all jump in the old VW bus, drive to where we’re hiking and then go. So that’s been my recent splurge just to have that bus that we fixed up and into a fun family vehicle.

Carol:
That is so cool. What color is your VW party bus?

Devin:
So it is pearl white on the top and kind of a light blue on the bottom.

Carol:
That is so cool. What a fun, just fun all the way around. Everything around that. I love it.

J:
That’s awesome. Okay. So that was the Four, let’s do the More part of the Four More and that’s where you tell our listeners where they can find out more about Devin Miller, where they can find out more about Miller IP Law and anything else you would like our listeners to know.

Devin:
Absolutely, I’ll give you three ways that are kind of easiest to connect up with Miller IP Law and/or myself. So the first way is generally just our website. If you go to lawwithmiller.com you can find out more about our cost, our turnaround times, everything, what the structure is. It has a ton of information if you want to just learn about intellectual property yourself. Go to lawwithmiller.com or milleripl, they both go to the same spot and fine out more about the firm.
One of the other things we do is, we do free strategy sessions or free strategy meetings where we sit down… The biggest fear for startups and small businesses is they always want to go ask attorneys and they know that as soon as they go in the door they’re going to hear the cha-ching, cha-ching of the cash register sound as the bill goes up and they have to pay for the attorney’s time. I wanted to remove that barrier so at least you can get advice, you can get a strategy, make sure you know how to protect and grow your business. So we do free strategy meetings and an easy way to go there is just, freestrategymeeting.com. You can go on there, grab a day and time that you can sit down with us, either via Zoom or come into our office. Now, with COVID, it’s usually via Zoom, but you can certainly come and talk with us.
We’ll sit down with you free of charge, talk about what you’re doing with your business, what may make sense, or give you advice. So say, “Hey, if I was in your shoes I wouldn’t do this right now.” So that’s one way, so freestrategymeeting.com is the second one.
Last one is if they just want to reach out to me personally, talk more about what I’m doing, find out about the VW bus or the ’67 Camaro, any of the above or anything else, they can just go to meetdevin.com, so that’s just meet, M-E-E-T and then Devin, D-E-V-I-N, dot com. So meetdevin.com. Grab some time with me and I’m happy to chat.

J:
Awesome. Devin, this was tremendously beneficial and useful. I’m sure our listeners are absolutely going to love it. Thank you so much for being here. Thank you for sharing all of that knowledge and we look forward to talking to you again soon.

Devin:
Awesome. It was a blast to be on and thank you for having me.

J:
Absolutely.

Carol:
Thank you, Devin. See you soon.

J:
Bye.

Devin:
Thank you.

Carol:
Seriously, that was such a fascinating discussion, wasn’t it? Who would think that something like intellectual property, IP, could actually be made fun and engaging and informative in a dynamic, kind of exciting way? I learned so many things and I thought it was especially interesting when Devin was talking about how different things like scents, like we talked about in the beginning, or different colors or different sounds, all of these different components of brands are able to be trademarked. I thought that was really fascinating and I love that Devin broke down the process into so many actionable items and really kind of took the fear and daunting nature out of the whole system.

J:
Well, I think you’ve said it all. I’m just excited that I have my first customer for Schooby Dooby Doops.

Carol:
Oh my gosh. You are too much. Too much.

J:
I’m opening a restaurant. Okay everybody, thank you so much for tuning in. I hope this week was informative and enjoyable for you and I hope everybody has an amazing rest of their week. Thank you for tuning in and we look forward to being back next week. So, thanks everybody. She’s Carol, I’m J.

Carol:
Scoobidy Doobidy Doobidy Doo, coming soon to a neighborhood near you, today. Love you baby. Listeners, thank you so much for tolerating our ridiculous inside jokes and sense of humor. We appreciate you tremendously and we really hope you enjoyed this episode as much as we did. Thank you for tuning in and we’ll see you next time.

J:
Thanks everybody.