Talking Legal with Richard Gearhart

Welcome to Building Better Developers, the Developer Nord podcast, where we work on getting better step by step professionally and personally. Let's get started. Well, hello and welcome back. We are almost at the end of our season and we are going to wrap up today a conversation with Richard Gearhart talking legal, which focuses a little bit more on the non-patent-y stuff last time. I know I'm getting a little too technical using patentee, that word that I just sort of made up. But this time we're going to get a little bit more into that. Talk about software patents and how does that work and what is that process like? Because I think all of us, even if we aren't pursuing one or haven't pursued one, I think there's always a little bit of curiosity about like, how does that work? What does that look like? What can you patent and what can you likely not patent? How do you know if you stumbled across one that you shouldn't? We're going to talk about that, so I don't want to jump ahead because he knows it better than I do. So here we go back into our conversation with Richard. Yeah, that's actually an area and I've experienced that recently with some images where it's just sort of, they just send something out and it's like, hey, we don't think you own this. It's one of those, it seems a little suspect because it's foreign country and they don't really have, they don't necessarily say who owns it. What would you, what do you need to do to sort of to protect yourself in those situations? Is it, because if you buy one, is it something where they have to prove that you didn't, which sounds like it's almost impossible? Or do you have to have, make sure you keep a receipt or keep a record or something like that so that you can track it back to where you got it? Yeah, I think keeping a record is the best thing and showing a receipt. You're right. I mean, there's scams out there too that could be problematic. Usually, if you get one of those letters or your client gets one of those letters, you want to do some research on the source of the letter. Sometimes it's a US-based law firm. Sometimes it's somebody you haven't heard of. Usually, if you have used somebody else's photograph, the best thing to do is just try to negotiate the lowest deal that you can. They don't. I mean, we've had services demand $20,000 and usually we can negotiate it down to a couple thousand, right? But if it's to that level, then you need to get a lawyer involved. One of the local libraries got called in on this and this sweet old lady from our local library called me and said, oh, well, somebody must have used the picture by mistake on our library website, which is kind of funny because you always think like the librarians would like know more about this than anybody, right? And she's like, oh, can you help us out? So we were able to help them out. But it's funny, you know, people don't even think about it. But you know, just it's out there. It must be if they're publicizing the picture, it must be I can use it. But it doesn't really work that way. So unfortunately. Now, one of the things that often is a challenge with law or in such things, I'm wondering, does this exist for patents and trademarks and copyrights as well? Is it particularly like let's just obviously the global stuff is always a little different. But within the U.S., is it something that is typically a federal kind of thing or is one of those things that depends on what state you're on and maybe even what state the claimant is in as far as what what the laws are around these or does it tend to be more of like if you're in the U.S., then this is your set of laws that you work with. It's pretty much if you're in the U.S., this is the set of laws that you work with. Trademarks, patents and copyrights are all governed by federal statutes. And so so it's federal law that applies. If you go to litigation on some of these issues, then the different federal circuits have different kinds of standards for different legal issues. But that really doesn't come into play very often unless you're in court, which hopefully you're never in court. But, you know, that for the most part, the rules are are generally similar across all the states. Oh, good, because that's one of those things that sometimes you just your eyes start to roll in the back of your head when you start looking at some of these things, particularly like accounting, I know is always one that it's like everybody's got their own things and all of that stuff that this stuff's hard enough without having to make it split it 50 different ways or more. Yeah, I mean, there are parts that are governed by state law. But for the most part, it's the same. We have clients in every state of the United States and, you know, we represent them effectively. So if it does involve some sort of state specific issue, then we would usually tell somebody that and help them find somebody who can help. But for the most part, the advice is pretty general. So on the other side, get into to patents and particularly software patents. And things where it's not. I mean, it's I think people, one, some people don't even realize that you can patent things that aren't a physical thing, a physical invention that you can also do, you know, solving a problem and stuff like that. What if somebody sitting there saying, hmm, I wonder if my application I built is something I could patent, what would be their I guess what would be their first steps or what would you how would you recommend that they they proceed in thinking about that? Well, so, you know, I would say that if somebody is seriously thinking about it, they should have a discussion with a patent attorney, you know, preferably somebody who's had a sufficient experience in software patents. You know, again, as I mentioned earlier, you're trying to patent the you're trying to patent the concept. Right. And so you're and but things to think about are, you know, how what is what is inventive or creative about what you're doing. Right. So if you're putting up a blue website versus a pink website, the patent office, they tend to look at more the technical side of the of the invention. And so while having a blue versus pink website may be great marketing idea, it may not be strong enough technically, you know, to get a patent. You are going to spend, depending on the law firm, you use probably somewhere between 15 and 20 thousand dollars on the application process. So that and you can certainly spend much more depending on who you hire. But if you're an entrepreneur, then you would probably be approaching a firm like ours. And that's generally that's the price range. We tend to be a little bit on the lower side of that. But you would and you would go through a search first. You would see what else is out there. The attorney would evaluate whether or not your software meets the eligible subject matter standpoint. So if something is purely mathematical, it's considered an abstract idea. There was a period of time where a lot of patents were being denied because they didn't meet this this utility requirement. This and they were considered abstract ideas. Over time, the patent office has improved and they have now guidelines. And so if your invention can be claimed using sort of one of those templates, if you you stand a better chance of overcoming those kinds of rejections. And so, you know, that the number of software patents that are being granted now is pendulum has swung the other way and it's and there's that, you know, now they're being granted, but you still have to you still have to meet criteria. You have to get over that abstract idea, one on one kind of rejection and still has to be novel, which means nobody else has done it and has to be not obvious. Right. Which means that another software designer wouldn't just say, oh, well, this is this is obvious. Right. And so part of what the attorneys do is they they they help figure out ways to emphasize the novel and that obvious elements to your invention and, you know, get up, get a patent secured. But some things to consider are the cost. Right. The fact that you're going to be disclosing a lot about your software in a patent application may be better off keeping it secret if you can. But you're going to be disclosing it. How rapidly is the technology evolving? How likely are you to make a lot of significant changes in the future? Right. If you're wanting to sell the company at some point, having patents is generally considered a good thing. If you're wanting to license the technology to somebody else, then you pretty much need patents. So part of whether you get one kind of depends on, well, what do you plan to do with your project? Right. And that all of those things factor into it. There's a lot of people in the software world who just don't like patents and they pose them for philosophical reasons. And and, you know, it kind of it's a it's kind of a hindsight analysis. There are people who have we've worked with who have really been kind of on the borderline about whether they should do it. And they did it. And then all of a sudden, somebody wanted to acquire their company and they were glad that they had them. There's other people who filed patents and there who did file patents and they were gung ho on them. But for whatever reason, their project didn't work out. And they kind of look back at it and say, well, I wish I hadn't spent the money on that. But the thing is, is you just don't know, right, how it's going to turn out at the end of the day. So. What is the what's the time investment typically to get a patent? Is it something that you could you can turn around in 30 to 60 days? Is something going to take you, you know, nine months or a year or what? Or is there even an average? Does it really vary again by by application? So the average, I mean, the the average pendency at the patent office is 38 months for intellectual property for software patents. For software patents, it's usually another year because they have a backlog. That's one of the more popular areas for filing patents. However, if you want a patent sooner rather than later, there are ways to make the process go quicker. You pay the government an extra fee. It gets an accelerated examination, in which case we'll usually get an official action from the patent office. An examination within a year, they say 18 months, but usually it's usually it's within a year. And then, you know, you can get your patent very quickly that way if you if you want to pay extra. And, you know, it's like a thousand bucks extra. So so that's that's always a possibility. Most of the time, you know, dealing with patents, you want to you want to drag out the costs and the expenditures as long as you can until you're sure that the project is going to be a success. And so, you know, sometimes it takes a couple of years to really get going and fully develop it and then get it out there and really get the commercialization process going. So most of our clients in the software space do not look for an accelerated examination. They prefer just to kind of go with the go with the timeline. And then another thing that you can do, too, is you can file a provisional application first. And that gives you an extra year to toy with the software, make changes, improvements. You know, if you want if you want to go in a couple of different directions, you can add all that. You have a year to make those kinds of changes so you're not as locked in as you are if you start with a utility application right out of the box. So so that can help, too, if you're if you're a developer and still working on the concept. So. One of the things you mentioned was in hiring, you know, going to a contract law firm and I'm sorry, a patent law firm and working through that. Is that something where you were going to get sort of advice on writing up the patent from from the attorney or is it especially if it's technical, is it something where usually you need to have a sort of have it written up before you even get there? Where does that go? Because I know a lot of people that I've run into a lot of people that from a technical point of view, you're like, I understand how to describe this technically, but I don't know if that's going to hold water in a patent or do I how do I legal legalize it and turn it into legal speak or something that that does, you know, like you said, sort of think that promotes the likelihood that it gets confirmed as a patent. Yeah, I mean, that's a really good question. Lots of inventors will come to us, especially on the software side, with some sort of write up. It may be a paragraph and maybe two paragraphs. We have other inventors who provide us with 60 page documents. We, you know, we have sometimes, you know, manuals, all sorts of stuff. And depending on the client and what they want to do and the level of participation that they want in the application, we do everything from just write it from absolute scratch. You tell you give me a concept and and then by the same token, we'll also take something that somebody's already spent a lot of time investing in and from and done a done a full write up. We'll take that and we'll massage it and try to get it as close to patent as we can. So that is, you know, that's the you know, it really goes the full range. And, you know, one of the advantages of working with a law firm is that we can kind of meet the client where they're coming from. And as a consequence, we can, you know, help them with the, you know, kind of whatever their needs are. Some people really enjoy being part of the process. Other people say, well, that's what I'm paying you for and just go to town, you know. And so that's what we'll do. So now from a like an overall umbrella kind of point of kind of thought process between all of these patents, trademarks and all that, is this is there such a thing or is this or is there a service? And if so, maybe what would they expect where you could have somebody like a legal expert sort of look over what you've got and maybe make suggestions and say, hey, you've got this, this and this should should make sure that you maybe file something so that they're more official copyrights or, hey, here's some stuff that you should look into trademarking or, hey, here's something that maybe it's worth chasing down a patent or is it more of a, you know, have somebody take a look at what's out there, see what they think that they might be able to market and then go find an attorney to sort of, you know, sort of that push versus pull kind of approach to it. So, I mean, it's almost always it's driven by the relationship that, you know, and so initially a client will come to us because they have an idea. They wonder if they should protect it. Is it protectable? What is the best kind of protection? And then over time, if the as the relationship, as we get to know each other, you know, lots of times the client will say, hey, I just had this idea. It would, you know, what should I do with it? Or we might say, so what's been going on with the business? Oh yeah. Well, we've just started this. I said, have you thought about protecting that? And they might say, yeah, you know, I never, you know what, now that you mentioned it, maybe that would be a good idea, you know, so it kind of becomes an iterative process. It's, it's important that whoever you're working with, that you have like a good relationship and, you know, a good professional will, you know, ask, ask some questions about what's going on, not to the point of being intrusive, but just really for the purpose to say, you know, is there something here that we should be thinking about? Is there something that we're missing? And then it's always up to the client to decide whether it's worth it, you know, investing in IP on that point or not, but it's something that, you know, you know, that we talk about. If we're, if we're working with a specific trademark or specific patent, then we are, you know, typically pretty involved in making suggestions. You know, if it's, you know, if we're, we're saying, well, you know, you can make this out of glass, but you know, could, it could be made out of some other material too, carbon fiber or something, right? You know, oh yeah, well, let's put that in, you know. And so we kind of try to brainstorm with, you know, the things that are, are, are happening in that, you know, happening with the client there. So, so yeah, it's, it's, that's where the kind of the best stuff comes out is through having that relationship with the person that you're, you're working with. So. So now that people have been listening to you for the last little bit and have, we've got this beginnings of a relationship here. And they, maybe they're sitting there saying, Hey, I'm, I need to think about some of this stuff, or I need to talk with somebody about how to protect my intellectual property and make sure my rights are covered. What would, and they're, they're saying, Hey, I think Richard would be a great guy to get ahold of what would be the best way for them to get ahold of you. Uh, we can just go to our website and, um, we can be found at gearhartlaw.com. It's a G E A R H A R T L A W.com and fill out a contact form or you can call us. Our number is 90, uh, 908-273-0700. Uh, again, 908-273-0700. And, uh, you know, we, we offer free consultations at the beginning of the relationship, just to see, make sure that we're a good fit for each other. And, um, and we answer a lot of questions at those, uh, initial phases. And, you know, we'd be happy to, to help, uh, you know, we specialize in working with entrepreneurs. And so, um, you know, one of the challenges entrepreneurs sometimes find is finding people who, who are interested in working with them. Cause a lot of times some firms only really want the big companies and, and, but we're not like that. We're very much, uh, into the startup space and we look for ways that we can support entrepreneurs and our services and our pricing and everything is, uh, you know, geared toward that. So, uh, you know, we would certainly welcome, uh, any inquiries by any of your listeners. So. Well, and the entrepreneurs in the audience, I know, appreciate that you're out there to help, uh, and to give them that extra, uh, it's, it's not only the benefits, uh, the, you know, the pricing and some of that, but also it's just that experience because it is a little different. You know, I think as you agree, if you're a, if you're a Coke or a Pepsi Coke or somebody like that versus an entrepreneur, just getting started, there's a, it's, it's different things to worry about different concerns, different level of resources, even to chase down some of these things and to, to do, particularly do something that's going to be more involved, like a patent filing or something like that. Yeah. I mean, I worked for a big company, uh, and for, for many years, first 15 years of my career, it was great training, but I decided that spending the rest of my life there was not for me. And so my wife actually suggested that I start my own practice. And that was 18 years ago. It was a great decision for me. And I think it worked out better for me financially than if I had stayed where I was. I also have a lot of the freedom that is important, you know, to me. Um, but I also faced all of the challenges that any entrepreneur faces when they're trying to start a project and turn it into a business. And I've lived through a lot of, a lot of that. And I know the, the pleasures and the pitfalls and the, you know, all of that stuff. So I can, we definitely can relate to entrepreneurs as business people, as well as, you know, from a technical and legal standpoint. And so, um, I think that's been one of our strengths. So I, uh, I, I, I'm, like I said, we're happy to help anyone. So, Excellent. Well, thank you so much for your time. Thanks for, uh, for getting into sort of deep into a couple of these areas. And I think this is great for everybody out there that just, especially if they came in and didn't really have any exposure to what's out there for intellectual property and what they need to worry about and what are some of the protections that they can have. So thank you so much for your time and I hope you have a good rest of your day. Thank you, Rob. Appreciate it. And sadly, well, maybe not necessarily sadly, but that wraps it up. I want to thank Richard for his time. That was an excellent conversation. This is one of those that I think even after we, we finished, we ended up talking a good deal longer. Great guy. If you have, if you're in any way need some potential legal advice, especially in these areas, definitely feel free to go out there, reach out to them. We're going to have links in the show notes. He's a great guy to talk to really just wants people to understand what their risks are and how best to avoid them. Yeah. Sometimes I think people, legal people get a little bit of like a, you know, the short straw cause you've got these villains and movies and stuff like that. But Richard's a great guy. Really just trying to make sure everybody gets what's fair. You know, it's like actual justice and law and all those things that you want a lawyer to be aware of. Great guy. Reach out to them, say hi from the developer crowd. We'll come back next episode and we're going to dive right into yet another interview. As I said, we're almost in, we're getting done with the last couple episodes and then we will wrap up season 20 and then come right into season 21. There are podcasts that don't last 21 episodes and we are into our 21st season after over a hundred episodes that were season one. So fun times going to continue on as always go out there and have yourself a great day, a great week. And we will talk to you next time. Thank you for listening to building better developers, the developer nor podcast. You can subscribe on Apple podcasts, Stitcher, Amazon, anywhere that you can find podcasts, we are there. And remember just a little bit of effort every day ends up adding into great momentum and great success. Please check out school.developineur.com. That is where we are starting to pour a lot of our content. 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