Q:       I have a great idea for a new product. Should I get a patent?

A:        Not necessarily. Very few inventions ever make it to the marketplace, and although getting a patent can provide valuable protection for a successful invention, it does not increase your chances for commercial success.

Q:       I saw a great ad about a company that promotes new inventions. What should I know before hiring this company to help me?

A:        Numerous television, radio, Internet, newspaper and magazine ads offer free information to inventors about how to patent and market their inventions. Generally, these ads come from invention promotion companies.

            Before hiring an invention promotion company, make sure it is a reputable firm. Be wary of the following claims, offers and demands:

·                claims of special connections to manufacturers that are interested in your ideas, since such “contacts” may be imposters posing as legitimate manufacturers;

·                the offer of market research or an initial “review” of your invention, which may involve substantial fees for a glowing, but fraudulent report on the merit or market potential of the invention;

·                the offer of a contract in exchange for helping you market or license the invention to manufactures;

·                demands for advance fees.

Q:       How can I protect myself against unscrupulous firms?

A:        The American Inventors Protection Act of 1999 gives you certain rights regarding invention promoters. Before offering you a contract, the promoter must disclose in writing the following information about its business during the last five years:

·                how many inventions it has evaluated;

·                how many positive and negative reviews the promoter gave these inventions;

·                how many customers received a net profit from the promoter’s services; and

·                how many customers have succeeded in licensing their inventions as a result of the promoter’s service.

           This information is designed to help protect the inventor and to aid those assistance companies that do, in fact, provide valuable services to inventors.

Q:       What else can I do?     

A:        Ask the promoter or firm for names of previous clients so you can decide who to call for references, but beware of imposters. Contact the Better Business Bureau, the Federal Trade Commission or the United States Patent and Trademark Office (USPTO) to determine if any complaints have been registered against the promoter. However, many unscrupulous firms change their names after the public is made aware of their activities, so exercise caution when dealing with any unknown promoter.

Q:       Does the USPTO investigate complaints about these unscrupulous promoters?

A:        No. The United States Patent and Trademark Office does not investigate complaints or participate in any legal proceedings against invention promoters, but the USPTO will:

·                accept complaints filed against invention promoters or firms;

·                forward those complaints to the invention promoter or firm; and

·                make the complaints and responses publicly available.

For more information on how to make a complaint, go to www.uspto.gov.

Q:       Where can I find inventor resources and patent assistance?

A:        The USPTO offers information on patents and trademarks (call 1-800-PTO-9199 or visit www.uspto.gov). Other good free sources of information include the Federal Trade Commission (www.ftc.gov) and the National Congress of Inventors Organizations (www.inventionconvention.com/ncio). You can also get information about local support groups for inventors through the United Inventors Association (www.uiausa.org).

            In addition, you can contact a law firm that specializes in intellectual property matters. Most patent attorneys will provide an initial consultation for a small fee, and sometimes for free. If you do not know of an intellectual property attorney, ask your personal attorney for a referral or contact your local bar association for a listing of local patent attorneys. A skilled patent attorney can assist you in obtaining the most legal protections available under the law, and can offer advice on invention development. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Brice Recker, a Columbus attorney associated with Okuley Smith LLC, and John Okuley, PhD, a registered patent attorney with the U.S. Patent and Trademark Office and managing partner of Okuley Smith LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What is native advertising?

A:        It is usually easy to identify advertising when you pick up a magazine or watch a television program because the ads are clearly differentiated from the magazine article or TV program. Native advertising is a form of paid media that may be harder to identify as advertising because it “looks and feels” like editorial content and is integrated with whatever a consumer may be reading or viewing.  

Q:       What’s the big deal?

A:        The issue is whether you, the consumer, realize the content is advertising.  Most of us approach advertising expecting that the advertiser isn’t objective and is trying to sell us something. But we tend to approach editorial content from a different perspective, and may be more likely to accept as “truth” advertising that is merged with content. Blurring the lines between editorial content and advertising could lead to confusion if not deception.

Q:       Is native advertising regulated?

A:        No, in the sense that there are no regulations set out in the Code of Federal Regulations that expressly address this. But yes in the sense that Section 5 of the Federal Trade Commission Act gives the Federal Trade Commission broad authority to prohibit “unfair or deceptive acts or practices in or affecting commerce.”  The FTC has enforcement power if it deems a piece of native advertising “deceptive,” even without clear cut guidelines. So, if the FTC finds a native ad to be “deceptive,” it can file a court injunction and apply “corrective practices” against the advertiser.

Q:       I run a small business, and wonder if the FTC might find my native advertising to be deceptive. How can I avoid an enforcement action by the FTC?

A:        Be as transparent and conspicuous as possible within the framework of the editorial content you offer. For example, some websites feature a “blog roll” with boxes running down the page showing a thumbnail photo and a snippet of the blog post. If the blog roll contains posts that are purely editorial and others that are native advertising, you should clearly identify the “native ad” posts. Use some background shading along with some text to indicate that the “native ad” content is paid advertising.

In addition, make sure your readers/viewers know what they are getting. Just using the words “sponsored by” may not be clear enough. For example, does “sponsored by” mean someone paid the website to write the content or does it mean that the sponsor actually wrote the piece? If the latter is true, you should consider providing additional text such as “sponsor-generated content,” which may be a more accurate description.

Q:       What should I keep in mind when developing native ads for my business?

A:        Native advertising potentially offers you two advantages.  First, it is less disruptive than traditional advertising. The advertising content flows more naturally with the editorial content. Second, it allows you to present interesting, engaging content that readers enjoy. You can easily make sure the reader knows that what you’re providing is advertising by offering transparency and clear disclosure.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney John C. Greiner, partner at Graydon Head & Ritchey LLP.  Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.