Understanding Intellectual Property: A Conversation with Mike Steele

What if you could unlock the labyrinth of patents, trademarks, and copyrights without breaking a sweat? Mike Steele, a seasoned intellectual property attorney from Cleveland, Ohio, and an electrical engineer by training, is here to illuminate the path. With straightforward examples like the humble spork, Mike dissects these somewhat mystifying concepts, shedding light on the intricate workings of the Patent and Trademark Office. He even gives us a peek into his journey from engineering to law, blending technical know-how with keen legal insights.

As we delve deeper, Mike unravels the threads of trademark and patent infringement. Through real-life cases, he paints a vivid picture of the murky waters of infringement, even touching on the burgeoning world of AI and chatbots. The conversation then shifts to the seemingly simple yet complex world of copyrighting, where Mike draws interesting parallels between cartographers' 'paper towns', typographical errors in computer programming, and the legality of AI as an inventor. 

In the final act, we explore the world of software patents and the intriguing story of how Ohio State University trademarked a single word. Mike generously shares strategies on cost-effective patent acquisitions and the distinction between the circle R and the superscript TM. We then discuss the importance of patience, perseverance, and networking, drawing inspiration from the founder of KFC. Lastly, we tackle the critical topic of trade secret protection, using the famed KFC recipe as our case study. So sit back, tune in, and join us on this captivating journey through the world of intellectual property with Mike Steele.

Transcript

Speaker 1: 0:01

Good morning everybody and welcome to another Rise from the Ashes podcast. Today I have a guest called Michael Mike Steele. He lives in Cleveland and he is an attorney, and we'll let him do the introduction himself, because no one speaks about themselves better than the person themselves. If you just joined us, please like, share, subscribe, download. I love you all and this is a service for you. Mike, please introduce yourself.

Speaker 2: 0:32

Great, thank you, baz. So, as a boss said, my name is Mike Steele and I'm an intellectual property attorney and I primarily focus on patents and trademarks and on the procurement side. So my primary job is to help people get patents on their inventions and then, as a secondary part of my job, I help people procure trademarks on their slogans or their logos and things like that. I have been working for this law firm since 2004, when I was still in law school, and I have been a partner at the firm since 2012 and I've been a senior partner since 2017. I have navigated the trials and tribulations of the Patent and Trademark Office for a long time and I've seen just about everything when it comes to actually convincing patent examiners that your invention is is patentable and easy, hard and everything in between. I got started in this field because to be a patent attorney, you typically need a STEM degree. In my case, I have an undergraduate degree in electrical engineering and most easily, 50% of patent attorneys have engineering degrees. The other one that's really popular is some sort of life science degree, molecular genetics and things like that. If they're, if they're focused on pharmaceuticals or medical devices of that nature, a lot of people are kind of surprised that I went to law school after getting an electrical engineering degree. You know they sort of saw it as you know, does he not know what he wants to do? And it was actually the opposite for me. I knew exactly what I wanted to do and what I didn't want to do. Engineers have a reputation for having a proverbial knowledge that's an inch width and a mile deep, and that never really interested me. I never really wanted to be the super expert in one area. Sort of the reason I like law school is I like knowing a little bit about a lot of different stuff and how all the different pieces connect. So I would characterize my knowledge as being an inch deep and a mile wide. I've worked on patents covering every imaginable technology, everything from lasers, satellites, quantum computing, solar panels, a lot of chip development, chip design, chip fabrication and many, many cases in between all of those technologies. When it comes to trademarks, you know they're a lot more predictable because you basically have two major areas. You have like the logos versus the. You know the actual slogan, the words, the name of the business, things like that. So they don't require. As someone with a technical background, you'll meet a lot of trademark attorneys that have, you know, non-technical undergraduate degrees. So there's sort of the two major asset procurement side of intellectual property. When it comes to the other two areas, trade secret, which is sort of self-explanatory, you know, you keep a trade secret and you don't tell anybody so nobody can infringe. It's not practiced by a whole lot of attorneys for obvious reasons, or just not a whole lot of money involved in that.

Speaker 2: 4:08

And then the second or the fourth one is copyright, and I advise some clients on copyright issues. But the beauty of copyright is actually get a copyright. Like, let's say, you write a book or something like that. You get a copyright from the moment you finish the book Automatically and you only have to register the copyright, which anybody can do because it's just fill out some forms. If you're actually going to sue or assert the copyright against the potential infringer, it just helps the, the copyright office, manage all the workflow. If they had to, you know, if every original work, everything on tick tock, everything on YouTube had to be registered with them, it would just be unwieldy. So it's very convenient that you can just use a copyrighted work that you've made and unless you're going to assert it against somebody else you don't need to register it. It's not the case with trademarks and patents, but but copyrights, the simple one.

Speaker 1: 5:02

So before I love that, mike, before we get into why you start all this, can you tell you, the listeners, what's the difference between a trademark or patent or passant?

Speaker 2: 5:17

So.

Speaker 2: 5:18

So one of it's harder to probably explain the difference between a copyright and a trademark, but but I'll get to the. The easy case is a Trademark versus a patent. So a patent covers the actual items or software that's going to be delivered. Basically, it covers a, an apparatus, a system or a design of a system that you can deliver to a consumer. So when you think about a patent, think about the products that you receive and how the actual product looks, as well as how the product works, and those things are all covered by patents. That the Easiest example that you can think of for any technology.

Speaker 2: 6:06

I like to use the example of a spork. You know, the spork is a combination of a fork and a spoon and what it does is Allows you to use one utensil where, like a school, where it's very cost sensitive, can use, would have to otherwise purchase too. But you know the way that I would couch if such an invention, if Somebody came in to me with it, is. You'd try to say you try to identify something, but that product does better than the individual components that make up the product. And so the example I like to give with the spork is say that you were trying to patent a grapefruit eater eating device, because the spork can eat a grapefruit better than a spoon or a fork. Even if you had both of them, it would not be as efficient as using spork. So that's you know. So the materials, the, the processes and all of the Consumer type products that you receive, those can be patent eligible.

Speaker 2: 7:10

Conversely, the trademark Is the, the name of a company, the logo, and it's basically like the presence, the overall umbrella that the company has. You know, probably the most famous trademark In that I can think of is the Apple logo. Right, you have the, the bite out of the Apple Beautiful logo, and you could put it on anything and people instantly recognize what you're trying to convey if you put it. If you, if you're licensed from Apple to put that Name or that logo with no words on a cable, you create a presumption that that cable is compatible with. If any Apple device that you would purchase like it. Just you know it says you're associating with that particular company, the, the third category being Copyrights. Copyrights cover original works. So if you film a movie or something like that, or write a book, it would be covered by copyright. Now, as I mentioned, the difference is easy when you're dealing with patents versus trademarks, but sometimes a lot of people get confused on Trademarks versus copyright. So I like to give the example of if you write a book and you have a front cover on the book, the front cover will often be caught, covered by both copyright and trademark.

Speaker 2: 8:35

Suppose that you're using the, the, a logo or a design language that represents, as an example, jk Rowling's Books with Harry Potter. They have a very distinct look to the outside of the of the book, and so if, if somebody was to create another book that Clearly looked very similar to a Harry Potter book, even had nothing to do with magic or witchers and wizards, you could be certainly considered liable for trademark infringement of that of that book or that logo. However, copyright is the actual work itself, and so the example being that if you had a book and somebody came up with a new title and a new cover completely, but they used the same words in this new book, that would be a good example of copyright infringement. That that that they were, you know, taking your work and passing it off their own.

Speaker 2: 9:35

And where it gets more confusing with copyright For infringement is how much you have to change Something in order to be in original work versus being a purely derivative work.

Speaker 2: 9:47

If you took the stick with the Harry Potter example, if you took the all of the names and Harry Potter just changed them some, but you kept the overall plot the same and it was clear that that was your only source material for creating a new book, that would most likely be copyright infringement.

Speaker 2: 10:07

And Conversely, if you take a bunch of different sources and combine them together, then you're likely have your own original work. That would be that would be copyright protectable as well. So so that's it's it's. It gets confusing, primarily because Often you can copyright and trademark the same thing. Mickey Mouse has this issue going on right now that some of the original works from Walt Disney are coming up in the public domain, but the actual trademark of Mickey that's also, you know, covered that is never going to be in the public domain. So so so while some of the original, like the steamboat Willie Version, you might be able to show that without paying a license, you're not going to be able to use Mickey Mouse in any way that you you see fit, because that's covered with a different section of intellectual property.

Speaker 1: 11:03

That's. I love that. I love the way you went through and to classify the cassette deck. Although they're under the same area, they're completely different, separate entities, aren't they? So, yeah, the way you've classified them was great, thank you. What can you do to stop someone Stealing your trademark or patent, or even Copyright? What? What preventions can you put into place?

Speaker 2: 11:32

so let's start with copyright and Obviously, the first thing you need to do is contact contact an attorney To to bring an infringement case. That is definitely not something you want to try on your own. I mean, they made a movie about a guy that brought a patent infringement case against GM, so it shows you how rare that that type of thing is. But Practice this with. I am no one's attorney that's listening to this. I'm just to consider this educational information. I always hear that Before every webinar, but I don't know. I've never actually heard a case where we're an attorney got in trouble for saying something in a webinar, so I don't know if it's. It's over a bunch of caution regardless.

Speaker 2: 12:17

Going back to your original question, how do you stop somebody from infringing? So if you consider copyright, music is Often an issue when it comes to copyright and the reason for it is it's so much easier detected the derivative work. You have the easy case that I gave earlier where you, somebody clearly copied your, you know your book and they're just passing off on their own as their own. But a much more common case is when they change. They change it considerably, but you can still sell, you can still tell the original work was there, and so in music what they do is they record the two songs and then they identify the beat in the song and then they can look at both songs and see that they match the timing of both songs. And so there's a real strong argument at that point that you have infringed someone's copyright and you probably will either have to pay a license or stop using that you know that work if they can show a clear derivation of their work relative to yours.

Speaker 2: 13:26

There was a there was a famous case in copyright from the New Yorker. There was a really famous New York, new Yorker cartoon where they showed the New Yorkers view of the world and basically it showed all the different streets in New York in great detail. Conversely, like as soon as you're outside of New York City, it showed you know Japan out in the distance and in between it showed like Iowa or something to represent the the rest of the United States. And Somebody made a movie I think Robin Williams is in the movie. I can't remember the name of it at the moment, but they created on their, they created for the promotional ads a poster that was clearly representative of that same view from of New York. And the court had said in that particular case, you know, it's clear that this was a derivative work. You only have one source. And so they were able to say that, even though they were definitely different paintings and different drawings you know they were they were close enough that that there was going to be, you know, case of infringement, I, you know. So that's that's the standard for copyright, for trademark. It gets a lot more complicated, but the standard is a substantial likelihood of confusion, and what that means is that what the courts are going to look at is all the factors somebody would have in making the determination that You're associated with the same company and so so it can be a lot of different things. That can be the, the color scheme that you're using, it can be the words that you're using, it can be the, the font that you're using.

Speaker 2: 15:25

And there was a famous case of the company 3m Brought in a trademark infringement case against the company named three in that was selling similar product. And there was one of those cases where I I I sometimes mention because, like I don't know how, 3n didn't think they were infringing it was. It was, you know, your proverbial slam dunk. So they were able to convince a court that it was. You know that that it was infringing.

Speaker 2: 15:52

A more interesting case, however, was Lexus versus Lexus, and you think of Lexus the car, but the car company was founded by Toyota sometime I think in 1987, 86, and they had a lawsuit brought against them from pretty company called Lexus that the larger name is Lexus nexus, but lawyers know them as that search engine for finding legal cases. It for pretty much any area of law. And you see, you had a car company using a very similar name, spelled with a you versus an I, as a search engine for the legal world. And what the court ruled in this case, which is was unusual that the sophistication of the clientele of Lexus, the search engine was Sophisticated, sufficiently sophisticated that they would not confuse that for being the same umbrella as the car. And so what I took away from that was if the clientele had just been Google, if Lexus replace Google, so it was a general search engine that everybody was using instead of just lawyers. But it probably would have been trademark infringement by Toyota With the with the trademark of Lexus. So so there's sort of a dichotomy of a substantial likelihood of confusion with 3m versus 3n, which is a consumer product anybody would use, and then another one where the word was practically identical. But no one's going to confuse a search engine for legal work for a car.

Speaker 2: 17:35

So you know the different, the different Factors that go into making the determination. Would would an average consumer be confused by, by the the two different products? So, and then patent infringement is a lot more systematic. So patent infringement, each patent has At least one claim, and what a claim is is it is a long sentence that includes different elements to it. Element you know, a device comprising Free for, for one example would be you know, a mouse for a computer, a device comprising a plurality of buttons and a Location sensor to create a virtual cursor on a computer screen, something like that. And so an infringing device would be a Apparatus Process or whatever that has all of the elements that were in the patent.

Speaker 2: 18:40

Now it's important to note that the vast majority, and I'd say vast majority, like 99.99% of patents, this would be the case that the infringing device can have a million things, but it has to have, like the three or four elements that are in the claim. If it has less than that, those elements and it doesn't infringe, and if it has all of the elements and then a bunch more. It's still infringes. So it's it's important to understand having. You can't distinguish your product by adding additional features. You can distinguish your product by having less features than all of the ones that are that that are shown in the in the patent.

Speaker 1: 19:21

I've got a question for you and I love what you, how you just described of it and into woven it with it, because that's a lot of information Just off the top of your head, so I don't know why, how you store everything in there, but that that is insanely Stupid. I can't even fathom how you do that With me. I don't know if you can ask this one With the invention or not. The invention with the up-and-coming AI and chat, gtp, all the rest of it. I know it's very difficult to copyright trademark or even paint and something from AI, from an image, from a piece of content, but is it?

Speaker 2: 20:06

can you?

Speaker 1: 20:06

see that being something in the future that we can do as producers, as content creators. If you produce an image through mid-journey or one of the other Components through artificial intelligence, can you see something being enforced in that and in the open AI space? Or I don't even comment to that. Was it too early in the game to look at that?

Speaker 2: 20:32

That's a great question and one I've thought about a lot, so I'll give a. I give a kind of a long-winded answer. There's a lot of different factors. So the have you ever seen the movie paper towns?

Speaker 1: 20:47

I Haven't personally. I might make a note of it now. Fine, gonna go see it, but yes, please carry on.

Speaker 2: 20:54

Okay, so it's. It doesn't have a lot to do with the name of the title, except for the fact that this is a. This is a major issue in copyright law. So a paper town is a fake city that that cartographers used to add to a map so that if an infringer came along and Made a similar map and they saw the paper town, the fake city, they would know that that person copied their map to make that, because the map that that town did not exist outside of the map. And in the movie they sort of explain that. But that's, but that's what they're talking about. This it's.

Speaker 2: 21:41

It's common in computer programming where you see comments in code and a lot of times I'll have misspellings because I can't spell for garbage, and so if I'm, if I'm spelling, you know I misspell something and then you get a copy. When they go to court and they see that you've made the same misspelling and you're trying to say you didn't copy it. It you know it doesn't go well for you. Yeah, um, so so any event, there's there's a lot that goes in to showing that you have a original work, and the reason that I mentioned the paper towns is because a similar situation happened when it came to phone books, if you're old enough to remember the big yellow, you know thing that they could use as a brick. I actually used it. Used to use them to help me move, because you could use them as a paper cheap paper, but um, in any event, remember that one of the trip, yeah, yeah, so one of the tricks that that used to be used by, like the yellow pages, that they would put fake names and phone numbers into Randomly into the phone book. And so when somebody else copied the phone book and tried to undercut them However, they did it and they'd see the fake name, right, it was equivalent to a paper town identifying that you had you had copied it now, interestingly enough, in that case, what the court said was, while the threshold for creativity it is low in a copy right, it does exist. And they said putting people's names and phone numbers in alphabetical order by itself wasn't creative. That was, you know, there was no creativity whatsoever.

Speaker 2: 23:30

And so when I think about AI, what I, even if they changed the law, my question for anyone is how did a person Provide real creativity to get the copyrighted? The image that they are trying to argue is Copyrightable if literally all they did is drawn me a you know, a picture of a computer screen, of a computer desktop. There you can make a real argument. They didn't meet any burden whatsoever for creativity. All they did was enter one command into a computer.

Speaker 2: 24:08

So, in my mind, if the law evolves and they do allow AI to be either named as an inventor, or if showing that AI to derive an invention or a copyrightable material is In is not going to be disqualifying for getting the, the IP, they're going to have to show how Creativity or ingenuity was involved in the process. Because of all you're doing with a like with chat, gpt, if you tell me, tell them, you know, solve this problem for me and it gives you the answer. The only thing that you did in that scenario was identify a problem, right? You didn't, you know, you did not do enough to warrant a 20-year monopoly that you would get from a patent, let alone 120 years for a copyright. So so, my mind, there's a possibility and the law will have to Adapt to AI.

Speaker 2: 25:08

But the same time, I think people are looking at the wrong thing, because they always talk about can AI be an inventor? And I really. To me it's it. To me it's really a bar shifting technology. It's going to have to raise the level of difficulty. You're gonna have to show in a finding of why it was difficult to derive the the result that you have. Otherwise it'll just be too easy to get that a copyright and a patent or a trademark on anything. Because you know, literally you just typed it into a computer, you know you didn't have to, you didn't do anything and you can now block, box out the rest of the public and that that's that won't be a good benefit to the public at large.

Speaker 1: 25:47

Yeah, no, I like that because it get for someone like myself as an entrepreneur and likes to create original content and give the value to clients and listeners etc. So I'm just I mean the process of redesigning my logo and other thing is for brand elevation. So, in Response to that, what I've done through Jack, gpt and mid-journey- I've created it a System.

Speaker 1: 26:18

I've enhanced what I want all the time, but I've saved the chat through something called prompt journey, so I can then prove that I've done Sufficient amount of work enhancing what I want for the outcome. Would that be a way to do that or to prove not that it is completely for proof this stage, but would that be a way to support that argument of you? I had to prove I did a sufficient work to make it unique.

Speaker 2: 26:48

Well, you know my mind. You want to preface it that I'm only preface this by.

Speaker 1: 26:54

Well, I should be right.

Speaker 2: 26:55

But but to your point I completely agree that that should be. You know, we have to look at the specifically. There should be the general idea of what they want and I and the reason for that is Because a major source of showing in a patent trial. We'll be trying to show the inventor's notebooks and and things like that where they can show the iterations, where it went from a paper napkin sketch all the way through to a final design and so you really have the evidence that you had reduced it to practice.

Speaker 2: 27:26

It used to be more common when the United States was before 2012,. We were under what they call a first man vent system, but that evidence is still valid for all sorts of things, to show that you didn't steal it from somebody else and you can show where the sweat equity came from. And I really think to that point that type of thing will be like what they'll want to see in the future. Because it just doesn't seem fair to me that somebody, if they think of a problem and they type it into chat, GPT, and three seconds later it produces a result that you know, why should you get a patent on that?

Speaker 1: 28:01

It's not enough work right, and that is an I mean, I think, as the as AI evolves throughout the years very much still fairly young, considering the time. You know, marketing's been about, internet's been about, et cetera, et cetera, but it's evolving all the time and it's important to remember that, as a, as a creator, as an entrepreneur or business owner, operator, attorney, whatever your, your field is, you can't rely on something that is organized by a computer, because it has to be organized by an intellectual mind and put into a, a a cause of cause and effect of this is what I want. This is the, this is the outcome, and then these are the steps I want you to follow to get there. It's a tool to aid the aid the business owner or person not to rely on, and it's important to remember that you can't rely on a computer to do what the brain does automatically. It's there to assist.

Speaker 2: 29:11

It has been in Google for years to assist the AI of them and the algorithms that change daily, not just every other week or six months but the other and actually I would I would actually argue in the sense of one of the larger problems to me is going to be where AI raises the playing field, and by that I mean independent of the law changing in the future. For what I was talking about previously today, let's suppose that you were trying to patent a new antenna design. Okay, to maximize the distance. Well, I can tell you with a hundred percent certainty, because I've seen with my own eyes AI is really good at designing antennas and it can create all sorts of patterns that are, you know, non-intuitive to humans, that create a radiation pattern that is that is preferable.

Speaker 2: 30:16

And so today, you know, if you create a new design for an antenna, it certainly would be patent eligible. But what I can't get an answer from the patent office on they have asked a couple of examiners is at what point is the tool for designing an antenna so ubiquitous that it becomes obvious? Because, yeah, you have an antenna and you show in the patent its radiation field, right, well, you could. You could have a radiation field provided to an AI engine, and then it gives you the design of the antenna that does the same thing.

Speaker 2: 30:55

So in my mind, this goes to the concept of you know, when you're in high school in the 1960s, everybody's using slide rules, right?

Speaker 2: 31:07

And as a result, very few students took calculus. Well, in 2023, it's a requirement when the kids start algebra that they all have graphing calculators and, as a result, a lot more students are able to take calculus. Not because the kids are smarter, but because the tools are so much better if they accelerate that learning curve. Now it's expected that all of the kids have these tools available, and very, very soon the AI engines are going to be used as evidence that that type of technology was, like you know, simplistic to derive, and so they're not. It's not going to be enough to get a patent unless you can show, you know, substantial enhancement relative to what the AI engine could do. And that's certainly going to play a part and again, not in the future, 10 years from now, when Congress can finally agree on something that changed the law. It's going to happen very, very soon, as soon as the courts get an understanding of how the AI engines work.

Speaker 1: 32:07

Yeah, and that's I mean, that's forever evolving how it works. And there's a new something come out yesterday Today actually I heard that was going to overtake JGDP false, true? I don't know, yet We'll see. I mean a lot of people who are stuck, who are startup entrepreneurs, startup companies, people who are, in that, going from corporate into self-servicing business. What advice would you give for companies just starting up now to get capital rights to the IPs? Would you advise, how would you do that? How would you go about doing that?

Speaker 2: 32:54

Yeah. So when you're short on cash and you're big on ideas and you hope every new company is this way, the first thing that I advise any company to do because it's free is when they come up with their name of their company is to start putting superscript TM every time they use the name of the company or the slogan that they're using. You know the or the logo. So there's a couple of different types of marks you see on trademarks. One of them is the circle R and one of them is the superscript TM. What the superscript TM is doing is telling the world as a whole that you own this trademark, and that doesn't guarantee that you own it, neither does the circle R. But you're asserting that that's your intent is to own that, and what that is is asserting what they call a common law trademark, similar to a common law marriage. You just by using it out there and you get notoriety for it. Eventually you're saying that you own this particular look, and the best example of that is when Ohio State managed to get the word the trademarked when they for the Ohio State University as University of Cincinnati fan. We always call it the Ohio State University, but they were. They were able to get that trademark because they got a very narrow trademark where they had been using the word be on specific color scheme that red color they have and the you know the word in a particular font and it's always all uppercase letters and they're using it on you know, athletic. Apparently Because they were using it in such a notorious fashion for years. They were actually able to register it before the patent in trademark office. Now I'm certain without looking at it, it was a very expensive trademark to get. I can imagine they had the best attorneys in the world working on it, but they were able to get a registered trademark. Had even an entity like Ohio State applied for that trademark without using it first, there's no way on earth they'd get it allowed. But they established their ownership of it, got the notoriety and then registered it. At that point they were able to get the trademark registered. The first advice goes back to put the superscript PM on anything that you have as your logo or trademark name. Design things like that Everywhere you use it your website, t-shirts, any type of. You give out pens. Make sure it's on there because when you do get revenue and you want to go register it, you'll be able to establish use of that trademark and it's a lower burden than to get a registered trademark. The registered trademark gives notice to the whole world that it's yours. Somebody can object to it, but what they say constructively gives notice to the whole world by putting it in a federal register.

Speaker 2: 36:16

As far as trying to get a patent on the cheap, the area that I like to advise people here is twofold. One you can talk to a patent attorney about getting a provisional patent application which is good for one year. It's a document that isn't actually going to be examined, but it describes your invention decently. Then you have one year to file a non-provisional patent application, which is the traditional application. It sort of delays the cost and you can see where the market is going to go in a year, because I've seen a lot of scenarios where one year they think the best ideas and slice bread and it turns out it's not going anywhere. Excuse me.

Speaker 2: 37:06

The second thing that I tell them to consider is a design patent.

Speaker 2: 37:14

If you've ever been to the Eiffel Tower or to the Statue of Liberty, the Statue of Liberty, I know, had a design patent on the whole statue.

Speaker 2: 37:32

Now it's long since expired, but when they had it they were able to own.

Speaker 2: 37:39

If they make those little replicas that they sell at the gift shop there of the Statue of Liberty, because it would be the same design no matter the scale of it, a design patent is really just how something looks, it's not how it works.

Speaker 2: 37:53

But that said, I've seen a lot of inventions that are adequately covered by design patents. In particular, as a hobbyist woodworker, I see a lot of value in design patents because I've seen a lot of companies get patents on the design of their markers or the rulers that the design itself gave functionality to the system, to the ruler by having little points for holding your pencil to pull it up and down the wood, and so just the look of it allowed coverage of functionality and design patents because of that are considerably less expensive than a regular utility patent, simply because as a design patent you'll end up doing most of the work because you've got to provide the drawings to the patent attorney, so a lot of the legwork is on your side. You can keep costs down with provisional applications. Putting the trademark, the superscript TM, or considering design patents is a good way to get started.

Speaker 1: 39:06

Would you only have a pattern for a physical object, or could you pattern a website or design for a website or anything like that?

Speaker 2: 39:17

OK, so you can patent software and I work in that area a lot but you typically won't be able to never say never, but you typically won't be able to patent a website itself. You'll be able to patent an engine for a website. So what's important to think about with a patent on software is you want to patent a process that somehow improves the performance of the underlying computer, and so one example of a client that I helped out with this particular issue was they had a patent on a product that could improve the ads that were shown to you if you're browsing the web, and one of the inventors showed me this article which was true, because I know, I feel this way that the average person tends to click close on a website if it takes more than two seconds for the ads to start loading. Just no patience, right? So the problem with traditional ways of getting what that ad would be was that they took AI engines and took a lot of different data, big data processing, and might take 10 seconds to get you out an ad, and even if the ad is better, if the person closes it, then the ad's worthless, right? So they had come up with a process that was able to reduce that time to less than a second by associating these different categories with things that you had already purchased, and, as a result, they're able to get you the ad almost instantly. And so we were able to argue before the patent tree mark office that it wasn't a business method. It was actually a method to improve the performance of the computer by outputting an ad faster than the traditional mechanisms that were available. And so when you can try to couch an argument when it comes to software like that, that's the easiest standard.

Speaker 2: 41:39

The second easiest standard is when you can say that it automates a process, and what I mean by that is at the end of the process.

Speaker 2: 41:47

Can it activate a motor, activate a solenoid or something like that? For my law firm we work a lot with airbags, so could it activate an airbag with a set of conditions? So if you have a real world physical actuation, that also is an area that you can patent. The areas that you can't patent, or you will have lots of trouble, are the ones where the information being output by the algorithm is really only useful to a human or to a computer to make money. So it's like the information either. Basically what they say organizes human activity, tells people organizing classes or something like that from a university, or it tells a stock trader, for instance, to buy a particular stock at a particular time and sell another stock at a particular time. It's not that those things can never be patentable, it's that there's a heightened burden to get them allowed, because you have to show what they call quote unquote significantly more, which I could go on for five hours and all of us would be confused, including myself, about what that means.

Speaker 1: 43:00

So I love this conversation. It's so useful to people like me who know absolutely needs a nothing about trademarks, patterns, copyrights et cetera. But how did you actually get started in all of this? You said earlier you had a degree in electronics and going from there, what was the burning desire from going from I wanna be an electrician into a complete 180, I wanna be an attorney. What was the switching point for you?

Speaker 2: 43:28

Well, I would tell you, I'm the rare case in this field, and the reason I say that is, overwhelmingly, if you talk to a lot of patent attorneys, you ask them the same question and usually the answer is some sort of serendipity. What it is was they went to some random class and they had a patent attorney and they got talking to the person and that looks interesting. And then they went and did it, or they were an inventor of themselves and they had to work with a patent attorney and they're like wow, this is pretty cool. In my particular instance, I actually knew I wanted to be a lawyer when I was in high school and at the time, mind you, this advice came from people that weren't lawyers. So, but I was only 15, 16 years old, so you know to excuse me for listening to them. We kept hearing everyone oh, there's too many lawyers, you can't even find a job if you're a lawyer. None of that's true. There's plenty of lawyers that can't find jobs, but it's usually not because they're lawyers, just because they have no interest in actually practicing law is my experience. But going back to that, I kept hearing this and so I never really thought that the law was something that I was going to be able to study. Even though I found it to be really interesting, that was until one day I heard about patent law. That was for people with a technical undergraduate degree. So you know, and that was certainly my second one of my major choices was I always thought I was gonna go into engineering and so I always thought, you know this could be.

Speaker 2: 45:06

You know, if I do this work and you know I wanna expand on it, it can be a platform for the next step. It's. So I completely disagree on the 180 type of job. It's more like a lot of engineers go on to get their MBA and become managers. In my case, I went on to get my law degree and then become a manager, but I became a technical writer that really knew the underlying technology and was able to help inventors get through the patent office.

Speaker 2: 45:42

And, quite frankly, I use more technical skills as a patent attorney than I did when I worked in engineering, mainly because the you know usually, as I said at the beginning, it's you know you have a really really small area that you know really well and I worked in conveyors and I was like, well, I don't really wanna do this the rest of my life. That was definitely. But that was the proverbial last straw that I was like, yeah, I really need to have, I want an area where I can continuously learn. You know that I want to learn new things all the time, and so that was the biggest you know draw this to this field. Did you have any?

Speaker 1: 46:14

mentors or people you looked up to along that journey, or do you have you know someone you aspire to be?

Speaker 2: 46:22

I wouldn't say that I had anyone that I aspired to. The person that trained me the most unfortunately is no longer with us. As you can see, I'm with the Tiroli law firm and I started at the firm, as I mentioned 2004, and Tom Tiroli, the founder of the modern version of my firm. He started, I think, in 1961 or something like that and anyway, shortly before he passed away, I was sort of the last person that he trained and so he was. He was the mentor for me. He really taught me how to deal with the patent and trademark office and yeah, it was.

Speaker 2: 47:06

He was a brilliant man, a little bit rough on the edges and a lot of people didn't like him because of that, but at the same time I was able to see, like that he really knew what he was talking about and even even if he was a little bit harsh, at least he was spending the time to teach me. You know the ropes and I always try to pay that back. The kindness that he gave me long after his passing. I always try to give it back by by spending a lot of time training the new hires that we have and working. You know people have questions or anything.

Speaker 2: 47:39

You know, I always tell them look, I don't you know I don't charge you anything unless you actually file a patent, having a consult or something like that. I, you know I'm happy to do for for no charges, and that I always try to equate back to I wouldn't be here but hadn't been for for his help. You know, like 18, 19 years ago.

Speaker 1: 48:02

That's awesome. I mean, I believe in the same sort of thing. Unless you do something in B of service, solve a problem, etc. Etc. There's always this, this area where you give the value and help people, so I love that. I'm going to put your website in the description below for everybody to click on it and then get a hold of you Before we go. I don't want to understand where you see yourself in three or three to five years time, are you not? You said you're a partner now. Do you intend to expand? Do you have an exit strategy? What, what's? What's on the what's on the horizon for you?

Speaker 2: 48:38

Well, you know, the one thing I didn't learn with a lot of stuff. I didn't learn a lot of school. I shouldn't say one thing. But what nobody mentioned to me in law school was your skills as an attorney. Have a cap as far as how far you're going to go into career and you know you can be literally the best patent attorney on the planet. And if nobody knows who you are you're still good at you're only going to be working for other people.

Speaker 2: 49:05

So my real goal and is to expand my personal network sufficiently to find clients that can develop my own book of business, that can help me gain traction not just with not just with my colleagues, but the law firm as a whole, and be able to, you know, sort of build my own practice inside the firm. So a lot of my, my primary goal right now is to really become completely self sufficient as far as not doing work for other attorneys and doing work, you know, only for my clients, and that's like. That's like the first step, and then the second step is having enough work that I can't do it all and that I'm supervising other people's work, you know, and so that's where I see myself. I hope, in five years is to be at least at stage one of that where I have, you know completely, my own book that.

Speaker 2: 50:04

I can keep myself busy and in an ideal world it would be that I have enough work that I have, maybe to a two assistant attorneys that are also helping out.

Speaker 1: 50:15

I was once told by the very famous person we underestimate what, underestimate what we can do in a year and overestimate what we can do in 10. And people don't realize that if we apply something or apply desire to something, we can create it very, very quickly, but it's the sustaining of it, and then expect expansion into what is naturally formed from what that desire is. So I love the fact that you've you know you've got this, and then you've got the other layer on top of that. And not only that, you're paying it forward to train other people, our future, which I think is very commendable. I think it's missed a lot in a lot of aspects of life. People look at themselves and they don't think about well, once I'm gone, who's going to take over the reins? Who's going to do this? And I love what you're doing to encourage other people and give back to the communities and train others. So thank you for doing that.

Speaker 2: 51:18

Yeah, I'd appreciate it. I like to think, to follow up on what you were saying about you know the different phases and how much you know you have in a year time to do in a year. What I found and I know a lot of patent attorneys very few of them are interested in, you know actually growing their own book of business. They tend to be extremely introverted people great people, by the way, I mean. One thing I really like about profession is a lot of friendly folks, but they really really don't like doing rain making, and it's not my favorite thing either. At the same time, I recognize that after doing this for 19 years it was actually about when I'd been doing it for 18, 17, 18, I realized it's never going to get better unless I do more on my own effort to build my own personal brand, because I'm about as skilled in the profession as I'm going to get, and so really it comes down to, you know, growing my personal network, appearing on things like this podcast and trying to make you know, make connections and hopefully grow my book. That way, I found that you know a lot of people they'd rather get a root canal than to do networking. So you know, I try to recognize the need for it and to respect the process At the same time.

Speaker 2: 52:41

Exactly what you were saying you need to be extremely patient. You can't expect. You know you make one phone call and it doesn't go your way. Okay, well, that was useless. You know you have to do it over and over again. As somebody with a minor in math or close to it, I always remind people that you know, statistically you do it one time it's not going to work. But if you do it enough time statistically inevitable, the things will come out in your favor. So you know that's what I did try to keep doing it and see what happens and hopefully make the right connections and build that book, as I was mentioning.

Speaker 1: 53:21

But that's what it is, mike. It's about the law of averages and I like to say every no is one step closer to yes and people are not accustomed and they're afraid to hear the no's. But if you embrace it and go actually one step to that yes, then it changes the psychology of where you are and you get a customer to say hearing no's. One great example was the KFC, the kernel from KFC. He went around, I think 1400 banks before he got a yes, but he wasn't going to give up. He just was going yes, going to each bank until he got that loan to build his business and from there, eventually he got that yes.

Speaker 1: 54:13

He built an international business on selling some would arguably say fantastic, fantastic chicken, depending on what your preferences are. But it was not giving up and that is very, very key, especially as, being an entrepreneur, law firm operative, want to be an aspiring partner. Wherever you're headed, you've got to be able to accept the no's in life and in business. You're not ever going to go, please everybody, but you remember you've always got that one yes. It's going to set you apart from where you are to that next level. So I love what you're doing.

Speaker 2: 54:49

Thank you very much. Yeah, I agree with everything you said, but I would remiss if I didn't mention, when you mentioned KFC, one of the great trade secret companies of the world, that they actually protect the kernels recipe by having three different factories. They have one factory that makes half of the recipe, one factory that makes the other half and a third factory that mixes it. So you know, that's. I didn't know the value of that, so I didn't know.

Speaker 2: 55:20

that has knowledge for me, mike, if there's anything else you want to leave the audience with, if you've got anything, final words, no other than if anybody you know has any questions, either you can reach me on LinkedIn just search for Michael Steele, patent attorney, or to roleycom, you can find my profile. You know you can reach me a lot of different ways. You can find me on Google. You can search for patent attorney. There's not that many of us and I'm looking forward to hearing from anybody. And if you have any, you know questions, you know, feel free to reach out. And, of course, if there's any podcasters out there that are listening to this and you'd like me to appear on your podcast, I'd be happy to do so as well. Not to steal any thunder from Baz, but I imagine there's a lot of crossover from the people that both create the content and listen to it. So Bye.