I love inventions and innovation. Like, LOVE love. So much so that I actually own a set of inventor trading cards (I know, nerd much?).
One of the reasons I settled on intellectual property law after law school was because of my affinity for innovation, ideas and tinkering. When I was a kid I’d take everything apart in my parents’ house just to see how things looked and worked. I got my engineering degree before law school, so intellectual property law just fit.
I mean, how could you not get excited about the spiderbike???
When I practiced patent law, one of the things I enjoyed most was hearing passionate inventors talk about what they had created. Unfortunately, that didn’t happen often enough to keep me in the practice. Today, I get to hear about inventions and innovation almost every day and it gives. me. life.
When inventors invent a new thing, one of the most common ways to protect that thing is via patent law. The United States Patent and Trademark Office (“USPTO”) has issued more than 10 million patents as of the time of this writing. Patents can be very useful pieces of property for entrepreneurs and businesses to own, particularly for startup companies looking for funding from angels, venture capital groups, and elsewhere. It is understandable that folks want to pursue them.
Even with such an emphasis in the startup/innovation world on patents, we do not make it easy to get them in the U.S. There are a number of reasons for this, which I’ll explore multiple times in future articles. For now, let’s start with the basics!
Patent law is a really complicated (and expensive) area of the law. Unfortunately, people with underrepresented backgrounds, including women and black people, have historically been left out of the patent system, though this is changing.
In this article, I’ll walk through the most BASIC of basic patent principles. This is one place where most folks need to work with a professional in some capacity. I’ll do a post later on how to choose the right patent lawyer or patent agent, because that choice in and of itself can make or break you (and your bank account).
Unlike copyrights and trademarks, to get patent protection you must file an application with the USPTO. Filing these applications has been deemed special enough to require lawyers and engineers to take a separate, difficult test just to have permission to file them (historically, only about 50% of the people who take the test pass).
Under the law, you can file these applications on your own, but you’ll need a very, very good handle on the law and rules to do so effectively. For example, there was an entire lawsuit over the interpretation of the word “or” in a 42 page patent.
Patent applications and the resulting issued patents can be assessed with a fine-toothed comb, so you want to be meticulous with whatever you do.
To get your patent application approved by the USPTO, your invention must be new, useful, not obvious, and fall within a specific legal category.
Your invention must be new.
An invention is “new” if it hasn’t been disclosed publicly. The law and rules on this are very, very complex. Some basic guidelines state that an invention isn’t new if the public knew about it before the application was filed or if the invention appeared in writing before the application was filed.
Your invention must be useful.
This requirement is commonly referred to as “utility.” The interpretation is complicated, but, generally, an invention has to be capable of being used for some purpose and it must have some identifiable benefit. The bar for utility is pretty low, and most patent applications explicitly state what the usefulness/utility of the invention is.
Your invention must not be obvious.
The patent office’s approach is to ask what people familiar with this invention’s general area would think–these people are called persons “of ordinary skill in the art”. If the invention would be obvious to an ordinary person who works with the invention’s field, the invention isn’t patentable.
Your invention must be “patentable subject matter.”
Fourth, the invention has to fall within one of the categories outlined in the law. These categories are:
processes,
machines,
articles of manufacture, and
compositions of matter.
You can also get a patent for an improvement on something falling within one of these categories. Even though the words are a bit complex, all kinds of things can be patentable, and they don’t have to be high tech or highbrow.
This patent for “leaf gathering trousers” is one of my personal faves.
Laws of nature, physical phenomena, and abstract ideas are not patentable, though this is another very complicated topic. There are literal books about the patentability of “abstract ideas” (which includes software), so tread lightly.
Congratulations–you now know juuuuuust enough to be dangerous. As I stated at the outset, your best bet is to work with a licensed patent agent or patent attorney if you think you have something patent-worthy.
Have you invented something and received a patent? Thinking about trying to get a patent? Shoot us a comment and let us know about it!
As I’ve written about elsewhere, the three requirements for trademark protection are use, distinctiveness, and non-functionality. The requirement of “use” seems easy enough, because “use” is a common word that everybody knows and understands, right? These three simple letters are actually pretty complex when it comes to trademark law. I’ll explain the basics below, but keep in mind this stuff has a lot of nuances.
In the United States, you don’t get a trademark just by saying you have one – you have to stake your claim in it through something called “use in commerce.”
This is true whether or not you register your trademark with your specific state or with the nationwide US Patent and Trademark Office. The legal rule on this states that:
The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce—
(1) on goods when—
(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and
(B) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.
What does all of this legal terminology mean in plain English?
You have to sell something.
If you’re selling a product, the trademark has to be placed on those products, or the product’s packaging, while you’re selling and/or advertising it. If you’re providing services (as opposed to selling products), the trademark has to be displayed during the sale or advertising of your services.
Use cannot be sporadic, occasional, or casual. If you’re staking a claim in a trademark, make sure that your use is consistent in all forms. You want to use the same colors, size, font, placement, etc. each time you place the trademark on something. If there’s ever a question about whether you’ve used the trademark in the appropriate way, this will help you prove that your “use” was done the right now.
On a related note, things like marketing, crowdfunding (i.e, Kickstarter campaigns) probably don’t meet the use requirement, though beta testing probably does.
The words “in commerce” mean that you’ve actually sold something. The trademark rules require that your goods have been sold or transported, or that your services have actually been rendered to others.
With sales, they must be real, legitimate sales where money is exchanged with someone outside of your business. It won’t fly if you’re just selling a “sham” product/service here and there, or shipping things within your company to your sales reps.
But, small companies, don’t get worried – if you’re a small business without a lot of sales, this is okay. The law requires your good faith, legitimate, bona fide efforts, not millions of dollars of sales.
You want to keep track of this kind of thing and document when and where you’re using the trademark under these definitions. If you decide to register your trademark, the application will ask for the first day (month, day and year) that you used your trademark in commerce.
For a federal trademark application through the US Patent and Trademark Office, you’ll also be required to prove your use through something called a “specimen,” which shows your trademark’s use in commerce.
From the USPTO Trademark Fact Sheet
Here’s some guidance from the US Patent and Trademark Office on what is considered an appropriate specimen:
Appropriate For Goods: Usually, a specimen for a mark used on goods shows the mark as it appears on the actual goods, or on labeling or packaging for the goods. For example, your specimen may be a tag or label displaying the mark, or a photograph showing the mark on the goods or its packaging. A website is an acceptable specimen if the mark appears near a picture of the goods (or a text description of the goods) and your customers can order the goods from the website. A website that merely advertises the goods is not acceptable.
Inappropriate For Goods: Invoices, announcements, order forms, leaflets, brochures, publicity releases, letterhead, and business cards generally are not acceptable specimens for goods.
Appropriate For Services: A specimen for a mark used in connection with services must show the mark used in providing or advertising the services. For example, your specimen may be a photograph of a business sign, a brochure about the services, an advertisement for the services, a website or webpage, a business card, or stationery showing the mark. The specimen must show or contain some reference to the services, that is, it is not just a display of the mark itself.
Inappropriate For Services: Printer’s proofs for advertisements or news articles about your services are not acceptable because they do not show your use of the mark.
If you haven’t sold or shipped anything yet. All is not lost. You can file something called an “intent-to-use” application with the United States Patent and Trademark Office (“USPTO”). This will basically hold your place in line as of the date you file that application. The USPTO will go ahead and assess your application to make sure you meet the legal requirements at that time. Then, once you do starting using the trademark you can file a statement saying alerting the USPTO of that use, and your trademark will be registered at that time.
There you have it—who knew three little letters were so complicated? If you’ve dealt with the question of use, drop us a comment and let us know how you worked through it!
Once you’ve committed to creating your business, you’ll have to decide whether to incorporate it with the appropriate Secretary of State’s office. If you decide to file an application to incorporate (as I think the vast majority of people should), it shouldn’t take long to hear back about whether your application is approved. Unless you’ve made some glaring error, you’ll probably hear back quickly, and….voila! You’re now officially a registered business owner.
The next step is pretty straightforward–it’s time to apply for a Tax Employer ID Number (“EIN”) from the IRS (also referred to as a tax ID number). The Tax ID number is kind of like a social security number for a business–it lets the IRS know where it needs to go collect its tax dollars.
Ya’ll know the IRS wants its money and wants it on time.
How to determine whether you need a tax ID number.
If you’re a sole proprietorship or an LLC with no employees, you don’t have to have a separate Tax ID number for your business.
There are some benefits to getting a Tax ID number even if you don’t have to have one:
Your business will need a Tax ID number to open a bank account or get a business credit card.
It is also helpful to have a Tax ID number when you’re applying for business permits and licenses.
If you’re signing contracts and getting paid by other people, they’ll need some identification number. If you don’t have a Tax ID number, you’ll probably have to share your social security number with the parties paying you.
Having a Tax ID number will keep your personal money and business funds completely separate, which is a good thing for other legal reasons.
Corporations, partnerships, and LLCs with employees do have to have a separate Tax ID number.
To determine whether you need a Tax ID number, check out the below questions. If you answer “yes” to any of them, you need a Tax ID number.
Do you have employees?
Is your business as a corporation or a partnership?
Do you file any of these tax returns: Employment, Excise, or Alcohol, Tobacco and Firearms?
Do you want to save money in a Keogh or a 401k?
Do you withhold taxes on income, other than wages, paid to a non-resident alien?
Are you involved with any of the following types of organizations?
Getting a Tax ID number is easier than you think!
Once you’ve figured out whether you need a Tax ID number, the process is pretty straightforward. Most people should feel comfortable doing this on their own. The best way to apply for a Tax ID number is to apply online – this is the preferred method. You can find the link in the button below.
Once you start the application you’ll have 15 minutes to complete it. The application cannot be saved to come back to later. After you complete the application, you’ll get your new Tax ID number immediately! You should download and save everything, but you’ll also get a letter by email confirming the details.
The online application process is available for all entities whose principal business, office or agency, or legal residence (in the case of an individual), is located in the United States or U.S. Territories.
If you can’t apply online, there are other ways, including fax, mail, and phone. For fax and mail, you’ll have to complete Form SS-4 and then send it to the appropriate party via the IRS guidelines.
You can learn more about these other application processes by clicking this link.
FYI, you are limited to one EIN per responsible party per day. The “responsible party” is the person who ultimately owns or controls the business or who exercises ultimate effective control over the business. Unless the applicant is a government entity, the responsible party must be an individual (i.e., a natural person), not another business entity.
So there you have it! Once you do this, you’re well on your way to having a legit business.
Let us know when you’ve crossed this milestone! This may seem like a small step, but we have to celebrate our successes large and small. So many people have wishes and dreams of starting a business but never do, so congratulations on taking the step!
“Content creator” is one of those phrases that gets thrown around a lot. The phrase is in the news, companies are hiring them, and they are apparently making millions of dollars on social media. Everybody wants into the content creator game, which I know because Saturday Night Live has parodied the whole concept.
For people out there writing things, recording things, painting things, designing things, (i.e., creating things!), it is obvious that society has placed huge social and financial value on the stuff people are making–from controversial adults to adorable kids. But, there is not a clear blueprint on how to get from writing a great blog post or posting a funny video to a real career based on leveraging those things on and off line.
One step between creating content and monetizing content, for many creatives, is protecting that content.
For better or worse, society has moved to a place where intellectual property protection is a mandatory consideration for entrepreneurs and content creators. You’ll have to decide where you fit on the spectrum of wanting to do anything with your copyrighted work, but to get there you’ve gotta understand what you’ve got first.
In the United States, copyright law’s DEFAULT is to protect your creative works when you meet three requirements: you create an (1) original (2) work that is also (3) “fixed.”
Once you’ve checked all three boxes, you automatically get copyright protection for it. You actually don’t have to register anything, though there are some significant benefits to registering your copyrighted work.
(1) For work to be considered “original,” you have to independently create (and not copy) something that has a minimal degree of creativity. The bar for creativity is very low. The US Copyright Office doesn’t delve far into the quality of a product.
Whether something is considered a “work” can be a little more complicated. The law uses the more official-sounding terminology, “work of authorship,” to refer to items protected by copyright law. This is defined to include:
literary works;
musical works, including any accompanying words;
dramatic works, including any accompanying music;
pantomimes and choreographic works;
pictorial, graphic, and sculptural works;
motion pictures and other audiovisual works;
sound recordings; and
architectural works.
This list isn’t comprehensive though. You can advocate for other things should be placed on the list, though its a significant hurdle. For example, computer software and websites don’t appear on the list, but they can be copyrighted. It took about 10 years for legislators and courts to officially recognize computer software as copyrightable work.
On the other hand, copyright law does not protect:
ideas,
procedures,
processes,
systems,
methods of operation,
concepts,
principles, or
discoveries.
For nearly everything on this list, you’ll have to look to patent law or other forms of protection.
Finally, to be copyrightable, a work must be “fixed.” This means that we have to be able to see, touch, hear, or perceive your work in some way for more than a brief moment.
If you blow a basic bubble with soap and a bubble wand, for example, the bubble isn’t going to be copyrightable, because it will only last for a short period of time.
Things like rap freestyles, if they aren’t also recorded or written down, also aren’t copyrightable for the same reason.
What to do once you complete a work that meets the requirements
Once you have these three requirements met, you own a copyrighted work. Automatically. You don’t have to register it with the Copyright Office, though there are benefits to doing so, including:
You have a public record that you created something and have ownership of it.
If you want to sue someone for illegally copying your work, you have to have it registered first.
While you can register your work any time, if you do it within 5 years of publishing the work, courts can assume that the copyright is valid and that everything in your application is true.
If you register your working early enough, you can get better money damages if you end up in court. The other side may also have to pay your attorney’s fees.
You can record your registration with the United States Customs Offices to protect against illegal copies coming into the country.
If you choose not to register, you can still use a copyright notice so that the public is aware that you’re staking your ownership claim in the ground for the work.
A notice consists of 3 elements that usually form a single continuous statement:
If you choose registration, the place to do that is the U.S. Copyright Office’s website. You can hire a lawyer to do this for you, and depending on the complexity you may need to. If you’re pretty savvy and want to try to do so yourself, the Copyright Office’s website offers some free tutorials based on the type of work you have.
The copyright duration will last one of two lengths of time:
The life of the creator (i.e., your lifetime) + 70 years, or
if there is corporate authorship, 120 years since creation or 95 years since publication, whichever date is earlier.
For even more guidance, one of the best books to walk you through the process is the NOLO Copyright Handbook.
All of this is just the tip of the iceberg, but this information should help you identify where you may have content worth copyrighting and the basic steps of what to do with it.
Do you have content that is copyrightable? Are you struggling to determine whether you do or not?
Please give as much information as you can in response to these questions. I’d be happy to share more tools and resources that help you get what you want. And, I know the other folks reading this can learn from your experiences! We are all in this together.
I always say that I’m on a mission to build a nation of good people with dynamic personal brands and successful businesses. We can learn from each other on this journey, particularly when we have accountability partners. This is why I am building a whole nation of them.
Download the app
You can connect to the the private community I’ve created to provide support and encouragement along the journey–online and via app. Check us out at programs.shontavia.com or via the Mighty Networks App.
Download the Mighty Network app by clicking here. Once it downloads, click “Find a Mighty Network” and search for Shontavia Johnson. You’ll find content there that I may not share elsewhere.
Thank you so much for joining me on this roller coaster of an experience. I am eternally grateful that I get to do this work with wonderful people each day.
Many entrepreneurs work in isolation, in coffee shops, or on the go. It is such a transient lifestyle that it can make zero sense to invest in a full-time office space for Monday-Friday. Enter the co-working space.
Co-working spaces are shared office environments for folks who are otherwise typically working solo or in small groups.
Coworking is not just about the sharing of infrastructure and cost, it is about belonging to a community, accessibility and sustainability.
Locations can offer everything from a table and chair in an open space, to hot desks, to cubicles, to private offices. These kinds of spaces typically share conference rooms, break rooms, and that kind of thing. This is ideal for solopreneurs, freelancers and small startups who don’t have the money to buy a building or rent more permanent digs just yet.
Folks have used co-working spaces to launch major companies—Instagram and Indiegogo both started out in them.
One of the most beautiful co-working spaces I’ve ever seen is Vector 90 in Los Angeles, a project launched with the help of Nipsey Hussle in 2017.
These kinds of spaces are popping up all over the place, with an an annual growth rate of about 24%. By some estimates, there could be more than 30,432 coworking spaces serving +5 million co-working people by 2022.
As you might imagine, finding the right fit for a co-working space can be really important. Even though you’re basically there on your own, the right space allows you space to both do your own thing AND also the opportunity to meet and connect with other very smart dynamic people and companies.
One of my dreams is to open a culturally competent co-working space that serves multiple functions, including but not limited to co-working. I’d like to offer content creator space for things like podcasts and webinars, serve as a cultural hub for the community, and provide personal & daycare services. Until my resources catch up to my dreams, I love finding new co-working spaces to visit and use when I’m traveling.
I recently visited a women-owned co-working space and it was great because there were so many little things there that I hadn’t experienced at other spaces, including a ceiling swing and a kids corner for sick days, school holidays, and my-sitter-canceled-at-the-last-minute days.
I have found a couple of databases for co-working spaces for women and black people that I thought I’d share for the good of the cause. I know I can’t be the only one looking for culturally competent spaces. I hope these lists are helpful for you!
According to the article, today’s black-owned co-working spaces have been:
built to give black people a safe space to find themselves in the work of innovation where they have largely been excluded. Data from a 2016 study by the Information Technology and Innovation Foundation revealed that native-born African Americans comprise of just half a percent of US-born innovators—despite being over 13 percent of the overall population . . . .
Co-working spaces that offer that extra level of support for black innovators, creatives and entrepreneurs are desperately needed. If one of the 56 companies is near you, check them out!
Women-owned co-working spaces directory
I have found at least one directory of women-owned co-working spaces, which you can find by clicking here. It is a little bit of an older list (from 2017), but it is a global directory and not just limited to the United States. For the U.S.-based women-owned co-working spaces, download the document below.
For a more recent assessment of women-owned facilities, check out this 2019 article from WorkDesign Magazine on the rise of women-only co-working spaces. Some feature things like nursing rooms, “beauty rooms” (stocked with makeup and hair supplies), and meditation areas.
Sign me up!!!
Have you ever visited a co-working space owned by a woman or person of color? What was your experience like? Leave a comment and let me know all about it.
