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I'm Riding a What?... An Intellectual Property Attorney's Guide To Patents and Surfing
by: Thomas A. Hatfield
Intellectual property is everywhere, and encompasses, among other things, the areas of patents, trademarks, copyrights, and trade secrets. As an industry, surfing represents a significant market that is heavily influenced and involved with intellectual property. In fact, the Surf Industry Manufacturer Association's (SIMA) managing director Sean Smith surprised me with the fact that the U.S. Surf market is estimated to be a $4.14 billion industry and the worldwide surf market is estimated to be a $6.5 billion industry. SIMA, in a fact sheet, further reports that there are about 1.6 million people who participate in surfing. This substantial market is segmented along several intellectual property borders that have been created by both organizations and individuals. As an indicator of this segmentation, just start looking for those telltale indicators that include "Patent Pending", "Patent No. ___", ®, and ©. Chances are you will many of these references to trademarks, patents, and copyrights on your clothes, your board, the videos you watch, and your surfing accessories. So, you may be asking, what exactly is a trademark or patent anyway?
A trademark is a word, phrase, symbol or design, or a combination of those things, that identify and distinguish the source of one party's goods and services from those of another party. Trademarks are often a good source of income generation for organizations having well established brands. This is because the organization can license the use of their trademark for display on almost any item or piece of clothing you can imagine. For example, Sticky Bumps® U.S. registration number 1831402 is used in conjunction with "apparel; namely, shirts, shorts and hats, "Roxy T-Street Surf Contest" an application for which was filed March 29, 2004 for use in conjunction with "entertainment and sporting events in the field of boardriding sports", and U.S. Trademark Application No. 78305769 for "Robert August" used in conjunction with "clothing, namely, shirts, t-shirts, knit shirts, woven shirts, sweaters, sweat shirts, tank tops, jackets, pants, sweat pants, shorts, swimming suits, board shorts, socks, belts, caps, and headwear".
The sheer power and financial potential of trademark licensing is clearly apparent since you can easily find a trademark that only a few years ago was found exclusively in a line-up, and which now is prominently plastered across the shirt of someone living several hundred miles from the nearest break.
A patent can be broadly defined as a temporary property right, often described as a "monopoly", granted by a government to an applicant. Patents allow those who own or license them to have some significant market leverage. This leverage exists because a patent owner or licensee can control the use, manufacture, and sale of products covered by the patent. An example of a patent related to surfing is United States Patent No. 6,375,770 published as being assigned to O'Neill, Inc. (Santa Cruz, CA). This patent relates to an apparatus and methods for the "formation of adhesively bonded butt seams between foamed, fully cured, elastomeric, resiliently compressible and flexible sheets of material of the type used in wet suits". In very basic terms, if you want to make, use, or sell a device or method covered by the patent, you need O'Neill's permission, otherwise you may be the subject of an infringement action. While patents can be extremely valuable, they do not guarantee that the patent owner or licensee will financially benefit. A good patent is like a good board, it won't help you find those perfect waves, nor will it position itself, however, once you're there it lets you rip. Therefore, the critical thing you should keep in mind, whether you are an individual inventor or a decision maker for a multinational company, is that you need a patent strategy that dovetails into a solid business operations plan which includes marketing and licensing know how. Without those, you're going to take it on the head every single time.
While the patent systems around the world share many features, they are in no way identical. The U.S. patent system serves as a solid reference point from which to understand most of the other patent systems. The legal basis for granting patent rights is found in the text of the U.S. Constitution. Specifically Article 1, section 8, clause 8 reads, "the Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discovery". This constitutional right to patent property entitles an inventor to certain rights to the invention for a "limited time'. Typically a patent grant has a life of 20 years from the filing date of a patent application. Once obtained, the patent grantee has the right to exclude others from making, using, offering for sale, selling, or importing the invention in the United States. In addition, U.S. patent law considers, with some qualifications, those who offer to sell, sells, or imports into the United States a component of a patented invention or a material or apparatus for use in practicing a patented process, liable as a contributory infringers. As you can see, if you obtain a patent you may have some serious power over what others can legally do.
A U.S. patent is obtained by first filing of an application. The patent application is a formal document that includes, in general, a description of how to make and use the invention, any necessary drawings or figures, and a set of formalized descriptive sentences called claims. Once filed, the disclosed invention is examined by the United States Patent and Trademark Office (USPTO) to determine whether it meets all the requirements found under U.S. patent law. During this prosecution phase the applicant has some limited ability to cure defects and/or amend portions of the application. The typical application, once filed, spends about 2 to 3 years at the USPTO being examined and prosecuted. The cost of filing a patent application through a patent attorney is dependent on the complexity of the invention, but is typically in the range of $3700 to $5600. The final cost of obtaining and maintaining a patent can add several thousand dollars more to the cost. However, the incentive for spending the money is that a strong patent directed toward a desirable product or method can command very large revenue streams as well as providing insulation from competitors. A seemingly natural law of patents is that the more valuable the invention is, the more likely it will be fought over, and the more important the drafting and prosecution of the application will become in determining who wins. In other words, a poorly written and prosecuted patent will likely not be worth much. If you are going to take the time, energy, and money to apply for a patent, it is a good idea to find a patent attorney or agent who is not only familiar with the field of your invention, but who will also give you quality work. A poor quality discount or over priced patent will do no one any good, especially the one paying for it.
To obtain a patent you must meet several stringent requirements. The first requirement is that the invention must be of eligible subject matter. Eligible categories in the U.S. are limited to processes, machines, manufactures, or compositions of matter which have a practical utility. Thus, U.S. patent law defines four invention categories that Congress deemed the appropriate subject matter of a patent. The last three categories define "things" while the first category defines "actions" (i.e., inventions that consist of a series of steps or acts to be performed). The Supreme Court has stated that although patentable subject matter