Business Beat: Patents, Trademarks and Copyrights Aren't Good Enough to Protect Your Work

A patent doesn't always protect you when someone challenges your work, saying that he or she invented the idea first. In fact, there are two schools of thought when it comes to patents. One says that you should get a patent first thing. The other says that once you get a patent, you spend a lot of valuable dollars that could be better spent on marketing your product as opposed to defending that patent.

Most would-be inventors believe that if they plunk down "x" amount of money to secure a patent, trademark or copyright, no one else can steal their ideas. That's true in theory, but do you really want to count on the reliability of a theory when you are shelling out your hard-earned money?

A world-famous case involves the late Beatle George Harrison and a song he penned: My Sweet Lord. Harrison, who surely could afford the best legal advice money could buy, was accused of plagiarizing the melody of My Sweet Lord from a 1963 smash hit by the Chiffons: He's So Fine.

The argument many a new inventor or business owner would make is that Harrison went through the proper channels, and he held the copyright for the song My Sweet Lord. And that's true. Nonetheless, the court decided that Harrison had infringed on the copyright of He's So Fine, and the holder of the copyright to that work had to be reimbursed. (Ronald Mack composed the song in 1962, but ownership of copyrights may be transferred from one publishing house to another, so whether Mack owned the copyright at that time is anyone's guess as there are conflicting accounts.)

In business, this is what is known as a slippery slope. There were lots of unknowns and maybes despite the fact that Harrison could afford the best legal minds money could buy when he penned My Sweet Lord and applied for (and obtained) a copyright on the song.

So what happened? The slippery slope happened. This is why you leave nothing to chance in business, particularly when it is so easy to avoid a problem.

How can you avoid a problem if someone claims to have come up with your business idea long before you did, and the person seems to have some documentation that predates your official, legal paperwork? Easy. You keep track of everything you do regarding the project start to finish, with a particular emphasis on noting dates along the way.

Think of it as pre-patent insurance. It's worth more than any official slip of paper offered by the federal government. It's something George Harrison's people (and as a mega star, he had lots of "people") learned the hard way.

While you will ultimately protect your work legally, start protecting your business ideas from the first day. Your added steps will provide extra insurance in the event:

--Your patent is challenged by another inventor;

--The patent office claims "interference" because it has a similar patent application from another inventor; and/or,

--You decide to delay filing for a patent to test the marketability of your invention.

This pre-patent (trademark/copyright) insurance will cost you little, and it's easy to do.

1. Buy yourself a spiral bound notebook or any other type of bound book that's glued or held together by hand stitching.

2. Start documenting your ideas immediately, even if they seem unrelated, even if they have nothing to do with the current project. Think of it as brainstorming with a pen in hand.

3. When you get an idea you think you'll want to patent or build a business around, be as thorough as you can in describing it. Sketch models of the plan if it's an object, even if your best drawing comes in the form of stick figures. You just want something to illustrate your thought process that shows how you developed the idea.

4. The kinds of things to include in this business journal include: the basic idea; what led you to this idea (what sparked the thought process if it's something you saw or a need you saw that no one seemed to be filling); who you believe will want to use your idea (your target audience); and any crude drawings you design to illustrate your idea.

5. Each time you work on your idea, start a new page and date it.

6. As time goes on, and the idea gets more evolved, you'll be including things like manufacturers you've contacted in regard to build the piece, suppliers of materials you'll need, contacts of sales outlets for your idea or good, along with any concrete names, phone numbers and addresses of those you've spoken with about your idea.

7. Along the way, take your notebook to a Notary Public and have the latest page stamped with the date and official signatures. This provides proof of date as well as your thought process.

8. You can do all of this on a computer, which will certainly provide the dates, but if you keep the old-fashioned notebook, you'll not only have the date, you'll have your ideas written in your own handwriting.

When all was done in the court case involving George Harrison's supposed infringement on the melody of He's So Fine for his song My Sweet Lord, a judge said the following: It's "perfectly obvious . . . the two songs are virtually identical." While the judge also noted that he didn't believe there was any intentional chicanery involved in this event, it didn't negate the fact that one song very clearly mimicked the other.

It was all a very "subconscious" act. Nonetheless, the appellate court upheld the finding that there was no need to have an intent to infringe on the copyright for copyright infringement to have taken place.

The bottom line: you need to prove that it was your idea first, and sometimes that can be be done simply by taking pen to paper and affixing an official date to it all. Certainly you can afford a pen and a sheet of paper to protect what may potentially become a million dollar idea, right?