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Module 10 Creativity & Society Experience 17 1 Experience 17 Society can protect your Creativity One of the many amazing achievements of the Founding Fathers was to recognize how this new country would protect and reward its creative persons. This was done by the construction of the U.S. Patent system. The Venetians originated the concept of patents and the British adopted the idea of Letters Patent in 1623. The U.S. system begun in 1790 and now in place, is considered to be the best in the world. Only three patents were granted that year. Now about 350,000 applications are submitted annually. As President Abraham Lincoln observed “The patent system added the fuel of interest to the fire of genius”. Interestingly, the comedian Jay Leno on his Election Day show pointed out that Lincoln himself was also an inventor … of the penny, the town car and logs for example ! 2 It is very important that you understand the positives and negatives of the patent system. Firstly, you should be clear what a patent actually is, in general. You can regard it as a written legal contract between yourself and the American People represented by the US Patent Office. You have created something of value that you are going to share with, and later transfer to, the American People. In exchange for the receipt of this knowledge, the US society grants to you a Monopoly to benefit financially from your knowledge for 20 years in the USA. Note that the Monopoly applies only within the USA. This means that no entity can make or sell your creation within the USA. It is possible to obtain similar rights in other societies elsewhere, but these rights are granted by other countries and have to be applied for separately. 3 Since the founding of the USA, more than 9 million patents have been awarded. About 50,000 issue each year. Each one had to meet the criteria of being (a) new (b) useful and (c) not obvious to one skilled-inthe-art. Most of these 9 million patents have expired and can now be used by anyone without payment of any kind. The first was awarded on July 13, 1790 to S. Hopkins of Vermont and deals with a process for making soap from wood ash. The patent was signed by President George Washington, Secretary of State Thomas Jefferson and Attorney General Edmund Randolph. So, if you want to start your own company but don’t have an idea you only need to go back twenty years to 1997 and all those original ideas created before that year are now available for exploitation. 4 Since patents decline in value as their expiration date approaches, probably all of those up to 1998 can also be considered for commercialization. By the time your fledgling company is ready to roll, patents granted around 1998 will be essentially worthless. Many patents granted in the past are quite amusing and may have merit nowadays as the basis for children’s toys. You should make connection with the world of patents because patents are the ongoing record of the world’s creativity. Recall that when the ideas embodied in these nine million patent applications were first examined all of the patented ideas were NEW, USEFUL and NOT OBVIOUS TO ONE SKILLED IN THE ART ! 5 Two of the books on our reading list deal with patented inventions and you should enjoy scanning the following; Totally Absurd Inventions. http://www.totallyabsurd.com/toiletsnorkel.htm The books, America’s Goofiest Patents, by Ted Van Cleave, Andrews McMeel Publishing, as well as Absolutely Mad Inventions, by A.E. Brown & H.A. Jeffcott, Jr., Dover Publications, Inc., 180 Varick St., New York, NY, 1970, are also worth reading. Inventions Necessity is Not The Mother Of, S.V. Jones, Quadrangle/The New York Times Book Co. , 10 East 53rd. St., New York, NY, 1973, is also amusing. 6 Societies in many countries recognize the potential benefits of a patent system in theory, but not in practice. A patent is only of value if it can be asserted successfully in a Court of Law. In the USA, it is extremely foolish to disregard an issued US Patent because the holder of the patent can seek legal redress which can be very costly to the infringer. As a legal contract, a patent has a very precise form. Go to USPTO.gov on internet to see patent examples. It is usually written by a patent attorney or a patent agent. This can be quite expensive. It is therefore desirable to write the first draft yourself before you go to see an attorney. This will reduce your costs. Let’s see how to do this. The first section of the patent is a listing of all articles and other patents which you compile, that are possibly related to your creation. The length of this list immediately indicates how unique your invention is. 7 A long list shows that many other people have made inventions in the same general area. This list helps the People’s representative, who is called the Patent Examiner, check in their files for other patents that you may have overlooked. Following this list, there is a short section under the heading Abstract. This summarizes the invention in general terms. Thereafter, there is a long Background section that tells the American Public what was the situation in the world up to the point when you came on the scene. Then you explain your invention and how it is better than anything that existed before you started to tackle this particular problem. In this section it is vital not to try to impress the Patent Examiner with your powers of deduction or reasoning abilities. This is a mistake scientists and engineers often make. 8 If you proudly emphasize that your solution was arrived at by careful reasoning you may run into trouble. The Patent Examiner may then respond that anyone skilled in the art could have reached the same conclusion by similar orthodox reasoning and therefore your invention does not meet the third requirement for patentability specified above. It is therefore preferable for the purpose of obtaining a patent not to give explanations of how you believe the invention works. The liberal use of such phrases as “unexpectedly” and “surprisingly” are helpful in avoiding rejection of your application on the basis of “obviousness to one skilled in the art”. The next section of the application consists of Roman numeral numbered examples of specific instructions of how to carry out the invention so that any of the American People can do this 20 years later, in the most straightforward way. 9 The first example must therefore be your best way of performing the invention. In other societies this need not be the case, and the best mode of the invention may be hidden among a bunch of not so good examples. German patents sometimes have the reputation of being less than straightforward. Finally, after the examples comes the vital heart of the patent; the claims. There are usually several. The first is the broadest claim. It is followed by as many as ten or twenty other claims of increasing narrowness. You can regard the first claim as equivalent to a fence that a pioneer in the West might have put around his house so as to enclose a large amount of land and to say “I claim all that is inside this fence”. But then the pioneer might say to himself “If I am too greedy, a neighbor or Native Americans might come along and dispute the amount of land I have claimed. 10 “Perhaps I should put up another shorter fence, inside the first, to claim a smaller area”. This would correspond to the second claim of the patent. If this sequence of thoughts is continued, eventually the pioneer might have a fence enclosing only the acre of land immediately around his house. This would correspond to the last claim of the patent, but clearly would be more defensible than the first claim because it is less comprehensive. Your goal in negotiating the claims with the Patent Examiner is to get your first claim to be as broad as possible. The Patent Examiner’s negotiation goal is to make your first claim as narrow as possible. Ultimately, you and the Patent Examiner reach an agreement as to the scope of the claims so that you are rewarded for your invention but that the American People are not paying too high a price for what they are receiving in exchange for the 20 year monopoly. 11 This is a good place to point out that the most revered scientist of modern times worked for some time as a Patent Examiner in the Swiss Patent Office. That was Albert Einstein. Although initially Einstein could not obtain a position as a professor or scientist (because none of his professors would recommend him !), one can argue that the only job he could get as Patent Examiner, was the perfect one for him. Why ? Because he spent his days sitting at a desk reading about other people’s creative accomplishments in their patent applications. This must have given him lots of time to think. Remember how hard it is to find time to think ! Anyone looking at Einstein sitting at his desk, apparently doing nothing, would not know if he was mentally considering the novelty of a patent application before him, or speculating about riding on a beam of light through time. 12 In contrast, if he had been a young Assistant Professor at a university he would have been very busy organizing and teaching introductory Physics courses and might never had the time to think the thoughts and ask himself the questions that revolutionized the world. So Einstein’s great contributions were conceived while he was a Swiss Patent Examiner negotiating with inventors. Maybe you should consider a career in society as a Patent Examiner in Washington, DC, or in some other country ! On-the-job training is provided and Patent Examiners are well paid. Former Patent Examiners are in keen demand later for employment by major companies because of their experience in the Patent Office. 13 In the past, all of this negotiation with the Patent Examiner to arrive at the issued U.S. patent had to be conducted by someone approved to appear before the Patent Office. This is usually a patent lawyer or a patent agent. The cost of their time is considerable so that it is expensive to obtain a patent. You can try to keep the cost down by doing as much of the paperwork as possible and acting as an assistant to the patent attorney. However, nowadays it is apparently possible for the inventor to file patents online without legal assistance. The book Filing Patents Online by Sarfaraz K. Niazi, CRC Press, Boca Raton, FL, 2003. provides detailed instructions on how to do this. Another source is Patent it Yourself by David Pressman, Nolo, Berkeley CA, 2005. 14 There are organizations that offer to evaluate the merit and patentability of your ideas as a prelude to selling the idea for you. However, these are frequently so ethically questionable that the U.S. Federal Government has actually published a pamphlet warning of the dangers of dealing with them. Check website “Reading Assignments” to see pamphlet. Patents are classified into three categories. The most valuable category is the so-called Utility Patent that we have been discussing. This is awarded for any new useful process, a new machine or a new composition of matter. A less dramatic category is the so-called Design Patent. Such a patent lasts only for 14 years and protects the ornamental design of some manufactured article. 15 Only the appearance is protected, not the structure or utility. It is not costly to obtain a Design Patent and the filing fees are lower than for the Utility Patent category. The third category of patents deals with any distinct and new variety of an asexually reproduced plant, including cultivated mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state. If you created a Black Tulip (you might want to read the novel by Alexandre Dumas) you would apply for a Plant Patent. At this point you may ask why does the US Society make it so difficult and expensive to set up this contract that we call a US Patent ? 16 One answer is that the issuance of a US Patent confers upon the awardee the right to maintain a monopoly in the US for many years that may be financially, extremely valuable. Accordingly, the documents defining the extent of these rights must be legally precise to perhaps withstand attack at some future time. Such attacks to contest claims or to invalidate issued patents do occur quite frequently. When an individual member of society does not wish to protect his creation by a US Patent there are other actions that can be taken. Firstly, the likelihood that someone may come along to copy your invention may be deemed small. Or, the creation may depend upon some factor that can be kept secret. The best example of this is the formula for the soft drink, Coca-Cola. The formula is not patented and anyone is free to make and sell a similar or even identical beverage. 17 However, since the precise composition is a carefully guarded secret of the Coca-Cola Corp. it would not be easy to create an identical drink. In the past, some employees of the Coca-Cola Corp. allegedly stole formulae information and marketing plans and tried to sell them to the competitor that manufactures Pepsi Cola. Of course, trade secrets are property like diamonds, gold and silver, and their theft is a crime. Therefore, protecting your invention as a trade secret is certainly an option. Nonetheless, it is somewhat difficult for an individual member of society to build a new company upon something that must be a carefully kept secret. It is also hard to sell a secret without telling the potential buyer what exactly is being purchased. 18 These obstacles are avoided when you are the owner of an issued patent that describes precisely what the creation is and what are the allowed claims. Of course, the question of the substantial cost of the patent still remains as a grave impediment to the individual member of society. This cost will be often in the range of several thousands of dollars. For a time, the US Government provided a means of resolving this dilemma through its Document Disclosure program. In a nutshell, in this program, you were able to write up your invention in a simple form, without the assistance of a patent attorney or patent agent, and send it in to the Dept. of Commerce (Box DD, Commissioner for Patents Washington, DC 20231) together with a check for $10. Unfortunately this Program has been discontinued and is only mentioned here in case it is reintroduced later. 19 The description was receipted and preserved on file for two years. During that period of time, you could contact potential investors or buyers, confident that you had a federal record of your invention to establish your ownership of your conception. If you did not succeed during that 2 year period in finding buyers or backers, there was nothing to prevent you sending in the same Disclosure Document again with a new date and another $10 check. Nowadays about all you can do is to file a provisional patent and that only lasts for one year. Within that year a regular patent must be filed to maintain protection of your idea and keep the original filing date. A provisional patent for an individual costs about $160. 20 You may have heard of the notion of protecting your invention by sending yourself a registered letter containing a description of your invention that you keep unopened after delivery. It is doubtful that the alleged advantage of this procedure is much more than an old wives’ tale. Your original conception in your creativity idea diary, duly witnessed and dated, together with a record of continued diligence in innovation in your Creativity Diary would be far superior in any future legal dispute as to the priority of inventorship. Now go to the US Patent Office website www.uspto.gov and write a paragraph on issued patents (with their numbers and dates) related to your Midterm idea. 21 Foreign Patents Patents can be obtained by filing applications in any country that you consider might be a large market for your creation. As in the USA, the patent grants a period of monopoly to the inventor. However, if the legal system of the country does not rigorously enforce patents it is not worth the considerable expense of obtaining a patent. The pirating of computer software, movies and music recordings is very difficult to combat, particularly in Asia, and legal protection does not seem to be effective there. In Europe, there is now a simplified mechanism for filing in countries within the European Union. The examination is conducted only once and is valid for all EU member countries. After the general EU approval is granted, specific versions in the languages of each country (German, French, Spanish etc.) have to be submitted to each country where the monopoly is sought. 22 The system developed in Japan is worthy of specific mention because of a special irritating variation. There it is possible to file an application that is published without examination by the Patent Examiner. This application need never be carried beyond the preliminary stage. However, because it constitutes a recognized official record it can be cited as prior art against someone else’s US Patent Application. Originally, Japanese society emphasized innovation and the abundance of highquality Japanese-made cars, motorcycles, cameras and electronic gear in the world’s markets is evidence of the success of this approach. Nonetheless, it is not so easy to find a comparable level of accomplishment in creativity in Japanese society. 23 The education system in Asian countries does not emphasize creativity and there was a Seattle newspaper article entitled “Creativity Lacking in Chinese Schools”. When China and India more fully grasp the crucial importance of creativity in their societies the world will undergo amazing changes. The unemployment level for young people, like yourselves, in many countries, including currently protesting Iran, is close to 30%. An exception to this apparent lack of creativity is the fact that a Japanese inventor, Yoshido Nakamatsu, holds some 2300 patents. This is the world record number for the number of patents held by an individual. It is intriguing to analyze this record mathematically with respect to time. Assume Nakamatsu has been inventing for 23 or 46 years. 24 Then he has been creating about 100 or 50 patentable inventions per year ! That is, about 2 or 1 inventions per week for nearly a quarter or half a century, without a break. What a wonderful record of creative accomplishment ! It would be interesting to determine how many of the Nakamatsu patents were also filed in the USA and if there are any other names on the patents. Remember, you must sign an affidavit with a US Patent application stating that you are the true inventor. Has Nakamatsu never had a colleague who has co-invented something ? 25 Trademarks and Trade Names. Another interaction of US society with creativity comes into play with Trademarks and Trade Names. This section ties into our earlier discussion of the importance of names. Trade Names are the designations that companies employ to describe themselves in doing business. Microsoft is an example of a Trade Name. Google and Ford are also Trade Names. If you had a company, it would have to have a name, and it is challenging to try to create that designation. Make a list of 10 companies you know and comment on what the Trade Name of each tells you. Trademarks, in contrast, are the names of the goods or services that the company sells. So in the phrase “Du Pont Teflon” the word “Du Pont” is the Trade Name while the word “Teflon” is the Trademark of the fluorinecontaining plastic made by the Du Pont Company. 26 You will have perhaps encountered this plastic as a nonstick coating for cooking utensils. Trademarks should be followed by the letter R enclosed in a tiny circle to show that it is registered. So you should never see “Teflon” without that little encircled R. Watch out for examples in your everyday life. It is vital to take care to protect an excellent trademark for it can easily pass into common usage and lose its uniqueness. An example of this is provided by the word Nylon. This word was coined by the Du Pont Company, perhaps from a combination of New York and London. In any event, the use of Nylon without the encircled R became common. The word then lost its capitalization, became nylon with a small “n” and passed into everyday use and into dictionaries. Thus, the value of Nylon as an exclusive trademark vanished. Can you recall another example of the loss of a trademark by failure to attach the encircled R ? 27 Besides words, Trademarks can also be designs (the Nike Swoosh), phrases (See the USA in your Chevrolet), slogans (Fly the friendly skies, Mountain fresh) or symbols (IBM, iPod, Apple) or combinations thereof. You should always consider officially registering your trademark either on the Federal or State level at the earliest possible moment to preserve it as your unique property. To do this, you must be actually using your trademark or have the intent to use it in interstate commerce. Trademark Law protects your trademark either on goods or services from use by other persons or entities. 28 However, the US Patent & Trademark Office may refuse registration on statutory grounds if the trademark sought; 1. is merely ornamentation and does not function as a trademark to identify the goods or services coming from a particular source. 2. is immoral, scandalous or deceptive. 3. may disparage or falsely suggest a connection with persons, institutions, beliefs or national symbols, or bring them into contempt or disrepute. 4. consists of, or simulates the flag or coat of arms or other insignia of the United States , or a State or municipality, or any foreign nation. 29 5. 6. 7. 8. 9. is the name, portrait or signature of a particular living individual unless he has given written consent ; or is the same signature or portrait of a deceased President of the United States during the life of his widow, unless she has given her consent. so resembles a mark already registered in the USPTO as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. is merely descriptive, or deceptively misdescriptive of the goods or services, is primarily geographically descriptive or deceptively misdescriptive of the goods or services of the applicant. is primarily merely a surname. 30 Other manifestations of Trademarks are associated with services such as Fedex, and with certifications exemplified by ASTM (American Society of Testing Materials) or UL (Underwriters Laboratories), and with collective marks indicating membership in an organization such as USGA (United States Golf Association) or ACS (American Chemical Society). Another aspect of Trademarks is represented by the word LOGO. The Vancouver 2010 Winter Olympics logo called “Ilanaaq” can be seen in the next slide. The 2018 Winter Olympics held in South Korea also had to create a logo. Another example of the need for ideas. 31 32 Trade Names In some situations Trademarks are the same as trade names. Coca-Cola is a prime example. Both the product and the company have the same name. The identification of all companies are recognized trade names. For example, Boeing is the trade name of the company that makes aircraft. Each state requires that companies have licenses to do business and that the company trade name be registered. Even without the formal existence of your company there are definite benefits to federal registration. Some of these are: 1. The filing date of the application for registration becomes the date of the first use of the trademark in commerce and establishes nationwide priority of use. 33 2. The right to sue in Federal court for trademark infringement. 3. The right to have US Customs stop the importation of goods bearing an infringing trademark. 4. A basis for filing trademark applications in foreign countries. The last item listed brings up the question of the value of trademarks in other societies. This recalls a situation of some years ago where an individual registered, in the tiny Principality of Monaco, some of the most notable trademarks of US companies as his own property. The US companies had not bothered to register their trademarks in tiny Monaco. 34 These companies were then forced to buy their own trademarks from that individual in order to comply with the regulations of the European Union. A more recent example from Russia is provided by the news from Moscow that Starbucks Corp. regained the right to use its trademark logo in Russia after a long struggle with a Russian lawyer, Sergei Zuykov, who had the logo annulled for lack of use in Russia. He then registered the logo and asked $600,000 from Starbucks for its release. Starbucks was not so successful in South Korea with a competitor. There a brand name of Starpreya was adjudged not to be too alike the name Starbucks. The South Korean company logo is the face of a woman within a circle of green supposedly the northern Europe’s goddess Preya. See next slide. 35 36 These might be used as examples of criminal or sharp practice creativity in societies. The point here is that you should be aware of the value of trademarks and logos in many societies. Starbucks was also involved in a dispute about the naming of specific types of coffee. Here we have the importance of creative names again ! A full page ad in a Seattle newspaper noted that Starbucks is apparently using Ethiopian names (Sidamo, Harar and Yirgacheffe) and that Oxfam together with the Ethiopian Government, are complaining that Starbucks is somehow preventing the Ethiopian coffee growers from securing trademarks based on these Ethiopian names. The first coffee was grown in Ethiopia in the year 850 ! 37 Copyright Societies also have instituted systems to reward creativity that has a strong artistic component. These systems award the creators the right to benefit exclusively from their accomplishments. In the United States the system is administered by the USPTO and you should go to their website http://lcweb.loc.gov/copyright/ to get up-to-date details because there have been recent changes that older books won’t cover. Copyright will be important in your creative life if you write a song, article, book, sermon, computer program or play, or make a building, map, cartoon, sculpture or movie, or take a unique photograph. Copyright is a form of protection provided by the laws of the US (and other societies) to the authors of “original works of authorship”. 38 It is vital to know that the protection is available to both published and unpublished work. In a nutshell, copyright means that no one can use your creation without your permission. Copyright begins as soon as the creation is in fixed form. So a song you sing in the shower is not copyrighted until it written down or recorded. So again you see how important your Creativity Diary will be. No publication or registration or other action in the Copyright Office is now required to secure copyright. Nonetheless, there is a Registration Procedure which is worth doing if you believe your photo, for example, is going to be reproduced worldwide. A number of years ago a UW student before taking this class took a wonderful snapshot of the singer Janis Joplin at a concert the evening before she ended her life. 39 This is the photo of her that is repeatedly used in articles and books but the student received no financial benefit because he had not taken the necessary steps to establish that he was the creator of that image. To register your work, send to the Library of Congress, Copyright Office, 101 Independence Ave. SE, Washington, DC 20559-6000 the following in one package 1. A properly completed application form 2. A check for $45 (the filing fee) 3. Two copies of the work 40 You can do all this yourself; the employment of an attorney is not required. When a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. The notice for visually perceptible copies should contain three elements. These are a circle with the letter C inside it; the year of first publication; and the name of the owner of the copyright. 41 For recordings, the letter P inside a circle replaces the letter C and the three elements are attached to the phono record so as to be visible. As far as you are concerned, the copyrights on your artistic creations last for your lifetime and 70 years thereafter. However, there is no such thing as an international copyright. Notwithstanding, most countries do offer protection under certain conditions and these have been greatly simplified by international treaties and conventions. 42 Assignments Respond to the sections of the text high-lighted in Green within the Experience into Canvas. 43
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RUNNING HEAD: MODULE QUESTIONS

Module questions
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MODULE QUESTIONS

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Question 1.
Patents
Patent is the exclusive right or permission provided by a government to an entrepreneur to
currently own and have a disclosure of his idea or product or even a company for a specified
period of time. This needs a patent application and a claim is made if the copyright is
violated. In the United States of America patents, the present numbering of the systems was
first issued in the month of July in the year 1836. It was noted that before 1836 there was an
approximate of 9,957 numbers of patents issued. The first reissue was RE00001 which was
issued in the year 1838 with the first utility number 546. The first redesign number D00001
was issued in the year 1843 (U.S Patent, 2018). The first plant document type PP00001 was
issued in the year 1931.The First Statutory Invention Registration number was H00001 which
was issued in the year 1985. In the year 2014 the last statutory invention was recorded in the
list as H002288.
Question 2.
Ten companies and what their trade names mean.
1. Apple Company
Apple Company was founded by Steve jobs in the year 1984. The word apple means that it is
a form of knowledge. In the spiritual story in the bible where Adam and eve were told to
never eat the apple tree of knowledge (Birmingham, 2016). The apple tree represents the tree
of knowledge. Thus the bite in the apple reflects the knowledge bite.

MODULE QUESTIONS

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2. Walmart
The Walmart Company was founded by Sam Walton who opened his first store in Arkansas
in the 1950s. During that period grocery stores were called supermarkets or super-marts for a
short form. His first stores w...


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