Fun with Patents and Trademarks

Fun with Patents and Trademarks Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. N. Rodgers: Hey Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm doing well, How are you? J. Aughenbaugh: I'm good. I'm quite happy for our podcast episode today, because once again we have our colleague Hillary Miller joining us to discuss all fun stuff, technical language alert. Hillary, maybe I should go ahead and get that trademark fun stuff. But we're going to talk about fun stuff related to patents, copyrights, trademarks. That's one of the reasons why I'm a happy boy this morning. N. Rodgers: Hillary, just so you know Aughie has taken lately, he's excited about Paris Hilton being able to copyright "That's Hot." Isn't that what she used to say? Anyway, I think that's where he's coming with cool stuff, that's going to be Aughie's phrase. Was she able to copyright it? J. Aughenbaugh: She didn't get it copyrighted, she got a trademark. N. Rodgers: Trademark, that's right. She got a trademark. J. Aughenbaugh: Listeners in a previous podcast episode, we had Hillary join us. We were talking about trademarks and copyrights. Particularly with copyrights, I mean let's face it, she's an expert on a lot of things, but she's definitely an expert as it relates to copyrights. Paris Hilton got a trademark, and she successfully sued the Hallmark folks because they used her trademarked "That's Hot" expression. Yes. N. Rodgers: That's a weird anyway. But first of all, good morning, Hillary. Welcome. H. Miller: Good morning. N. Rodgers: We just jumped right in because we're excited to have you here. H. Miller: No, I'm ready. I'm jumping in with you. N. Rodgers: First things first. Our library used to be a patent and depository library. The library I previously worked for was a patent and trademark depository library, which means that you can go there to those libraries to do research. Virginia Commonwealth University is no longer that, we refer people to the patent office itself where you can go and look through patents and do all kinds of research and all that other stuff. You can also see a patent lawyer if you have a brilliant, fabulous idea. But what used to happen is people would come in and they would say, "I have an idea for a patent." You would say, "Okay. Well, tell me about them." They would say, "I can't," because they didn't want you to steal their idea. I can appreciate it one level, but I cannot help you do research if you don't tell me what you were researching. H. Miller: Those search terms need to be pretty specific, you can't hold out too much. N. Rodgers: Exactly. That's like saying, "Look up on Google air." We're going to have to narrow that just a little bit. First things first, I want to talk about the process if you don't mind terribly. I have a brilliant patent idea for a better mouse trap. A better mousetrap than the mousetrap that is, I believe one of the early patents, but it's not the first one, I don't think. But anyway, what is the generalized process for getting a patent? H. Miller: There is a pretty lengthy, detailed application process to what's called the US Patent and Trademark Office. I was reviewing their website and I'm telling you, I got immediately intimidated as a person who has ideas all the time, left and right. What if this, what if that? I looked at this website and this process and I thought, "Never mind." N. Rodgers: My idea is not worth it. H. Miller: Yeah, it's really intense. Which I think in one sense is helpful because you don't want people filing just frivolous anything. But they actually receive, I was in the website, about 500 thousand patent applications a year. That's a lot of people who aren't as intimidated by this website as I am, clearly. J. Aughenbaugh: Excuse me, Hillary. H. Miller: Yeah. J. Aughenbaugh: Or they got a lot of other issues. H. Miller: Free time. Strange amount of free time. J. Aughenbaugh: I don't think this podcast episode is going to get into, but nevertheless. Let's just go with the fact that they're really excited about their great idea. N. Rodgers: Patent jurors are a unique breed of people. They are a people who fundamentally are exploring the universe at its basic level so that they can change it, rebuild it, and making something else. J. Aughenbaugh: Yeah. N. Rodgers: It's cool, but it also puts them in a breed apart. They're artists in a way, it's very different. By the way, the first patent was for the making of potash and pearl ash by a new apparatus and process in 1790. Which I'm sure at the time, that was super important to me. But anyway. J. Aughenbaugh: Back to the process Hillary. H. Miller: Yeah. J. Aughenbaugh: By the end of the episode, Nia is going to want to file a patent application, right Nia? N. Rodgers: Heck, yeah. I got ideas. J. Aughenbaugh: All right. H. Miller: Well, first off, your idea has to meet some criteria to begin with. It has to be noble in the sense that you didn't get it from somewhere else, no one else has proposed it before. I really like this concept of non-obviousness. If you are a mouse trap designer and any old mouse trap designer or extermination specialists could just look at this and say this isn't. Of course the clamp goes here, it goes down here. That's how simple machines work. You can't something that everyone else would look at and go daah. J. Aughenbaugh: Hillary, what came to my mind was the punchline of many jokes. Oh, captain obvious. H. Miller: Yeah. I can't patent a wheel, no. N. Rodgers: Wheels were discovered and created way back, 5000 years ago. H. Miller: But it also doesn't have to be. Like a lot of other legal tests, they use the reasonable person test. To a reasonable person, any person on the street. This is specifically to I guess a reasonable person who has knowledge of the art, is what they frequently refer to. You could say it would be the kind of captain obvious joke that might be made among a group of really extremely knowledgeable, well-trained engineers in a certain field. I may think this is groundbreaking stuff, but a roomful of those folks think it's too obvious, how are we not going to get a patent. N. Rodgers: Okay. H. Miller: All of this is really interesting because to me it did seem a little bit counter-intuitive when I first started learning about this stuff. Your application has to proof enough to the examiner that it's possible for it to work. They're not going to go out and test it behind the fact, you have to lay it out. You may need diagrams, you may need drawings. You have all the steps that go into creating it and making it work enough so that that person who probably does have some technical expertise doesn't just again look at it and go, "Oh, a time machine, that's nice." Isn't that? You push this button here and this button there and it works. Sounds like a great process, no. You have to really go into detail. J. Aughenbaugh: By the way listeners, you can go online and you can pull up accepted patents. H. Miller: Yes. J. Aughenbaugh: You'll see the diagrams or drawings that Hillary is referencing. H. Miller: Yeah, they're called figures. Figure 1, figure 2, figure 3. They really are with little dotted arrows to show you how something would move or how something would produce another thing. Unless you could actually make a time machine that worked, that showed you somehow arriving in the past, you would approximate some buttons that say, turn this to get the past, would be a delightful, but it would probably not pass snuff with their engineers. J. Aughenbaugh: Here's the thing listeners, when you click on some of these patents, the three of us have done some research, some of these patents made a struggle. But some patent examiner who signed off on it looked at the figures and said, "Oh, this would work." For some of these sled pants, you can put on sled pants and commute to work. Okay. There was a patent application for this. There is the head exerciser which actually did get a patent in 1923. But there are figures that show how the head exerciser would work theoretically. N. Rodgers: By the way, Aughie can you describe briefly how that would work? H. Miller: Yes, please. J. Aughenbaugh: Okay. There were plates that would be inserted into your mouth that you would clamp down with your teeth. The plates were attached to the other person via a spring device. As each person pulls away, it becomes a tug of war game or think about playing tug of war with your pet. Okay? N. Rodgers: Except both of you have the rope in your mouth, not just your pet. J. Aughenbaugh: Yes. N. Rodgers: The danger here is for your teeth. I were to assume J. Aughenbaugh: Well not only your teeth, but apparently just like in a game of tug-of-war, if you really want to go ahead and have fun with your opponent, you basically just give up. N. Rodgers: And it jerks back. J. Aughenbaugh: It jerks back. N. Rodgers: Then they get whiplash , nice. Some engineer was like, sounds good to me. J. Aughenbaugh: But the thought was each person's force and head weight, would be enough to go ahead and exercise your head and neck muscles. N. Rodgers: Yeah. It's resistance training, but boy, is it dangerous resistance training. First of all, put this in your mouth and be careful. J. Aughenbaugh: Okay. Hillary, back to the process. N. Rodgers: We could go on for hours, oh, my goodness. J. Aughenbaugh: Because we are one to do we are digressing all over the place. N. Rodgers: We are doing that. Sorry, Hillary. J. Aughenbaugh: Hillary, you submit your application in a hearing examiner. N. Rodgers: Wait. We're missing a step. There's all these things that it has to prove, but then isn't there aren't there Benjamins involved in this? Isn't there money involved in? H. Miller: There is money involved. N. Rodgers: You can't just submit a patent. H. Miller: No. N. Rodgers: These 500 thousand people who submitted, how much do they pay each? H. Miller: Oh, my goodness. Well, it depends on which fees they had to pay. There's an application filing fee. I'll just throw that basic ones out there for a basic utility patent, there's $320. The patent search fee is $700 because they've got to do a search of past patents to see if your idea has already been invented by someone else. There's a patent examination fee, $800. There is a patent post allowance fee. I'm not sure what that is, but it's $1200. If you need an extension of time, there's $220. If you would like to have prioritized examination, it's $4,200. What is interesting, there are also fees after the fact there are these maintenance fees. You have to pay it if you get your patent. It's in years three and half years, seven years, 11 years out maybe. Which again are in the thousands of dollars each of those times. What happens is you get a 20-year life of your patent. If you don't pay those maintenance fees, your patent will expire. That may be helpful if you aren't making any money on it and you just say, "Never mind, let it expire." If you are making some money, it might be worth it, but it's not cheap. N. Rodgers: The cheap route is $3040. That's without your 4200. I wanted to borrow go quick thing which would make it $7,240. That's to get them tell you, no, it's already been patented by someone else. Because that's the risk, right? H. Miller: Yes. N. Rodgers: That you will pay this huge chunk of change and it will turn or not, which is why the patent office usually suggests to you that you go see a lawyer first. H. Miller: Yes. Have a lawyer or Patent Agent who are registered. Have to be registered by the patent office. N. Rodgers: Because they're usually cheaper, they've been having it done, the patent office, that's one way they discourage some of that I assume is they send you to a patent lawyer who's $200 an hour who says, "Dude, we found that in the first search we did in 10 minutes. You can't have this." H. Miller: Or this doesn't meet this threshold of non obviousness of novelty or your application isn't ready yet, you haven't explained anything. You need to explain for someone to be able to use your invention. J. Aughenbaugh: Hillary, you mentioned, you can go to a patent attorney or you could go to a registered patent agent. How does one become a patent agent? What's the general profile of a patent agent? These lights firms that advertise their services that say, we have been researching patents and we have helped people achieve their patent dreams. H. Miller: Do you remember the commercials about the cave man who was tinkering with a rock and he invented the wheel? J. Aughenbaugh: Yes. H. Miller: Yeah. I forgot about those. [OVERLAPPING] J. Aughenbaugh: Sounds a little sleazy to me. N. Rodgers: I actually know an answer to this. J. Aughenbaugh: Okay. N. Rodgers: Weird. Because I don't usually know the answer. But so a patent agent is a person who has passed the US Patent and Trademark Offices patent bar exam. They have a test that you have to take that shows that you understand how to tell whether somebody has. Basically what you are is a junior examiner that doesn't actually work for the patent office. H. Miller: Yeah. And I think there have been past employees who have worked for them before who have gone into the market of working with inventors. N. Rodgers: Right. H. Miller: Though some of them will have technical expertise, because I had thought about law school before for copyright law. If I wanted to make the big dollars. Listeners, listen up. If you're thinking, although don't become a patent troll, please. Law school, intellectual property, patent specialization, especially if you've got a background in engineering or computer science or any of these fields. N. Rodgers: Yeah, you will make a killing. J. Aughenbaugh: Hillary to your point. I have recommended that to some of my students who were double majors in, politics and engineering or politics and biology or chemistry. They're like, "I want to go to law school." And I'm like, "You ought to think about intellectual property law." And they're like, "Why?" And I said, "Well, it will merge your two interests, law x science." I said, "Just do some more research about how much money they are pulling down these days." H. Miller: Well, because when you consider that it's corporations who are protecting their interests, they will pay top dollar to do that. N. Rodgers: Yeah. H. Miller: I mean, it really is highly specialized. If you look at some of the 500,000 a year, the volume of this, and sometimes I start to think like this is too complicated, we don't need all of this, but It's extremely specialized to have that in-depth legal background and all of this technical expertise. You would be an extremely high demand. N. Rodgers: And if you did it as an attorney, you would make a lot more money than you would make working at the patent office. Because frankly is the patent office you're still a GS, you're still in the system of government employees and there's only so much money you can make. The president makes $400,000. You're probably not going to make a huge amount more than that. But as an intellectual property attorney, that would be the low-end probably of what you would make if you were at the one of the higher end firms that protects the things like the electronics and computing and all that stuff. J. Aughenbaugh: It's not only patents. Think about, for instance, again, we discussed this in a previous podcast episode where Hillary joined us. A lot of copyright works, are not what we traditionally think in regards to copyright works, a book. N. Rodgers: Or a song. J. Aughenbaugh: Or a song. You're talking about, copyrighted works in regards to computer programming. N. Rodgers: Codes. Exactly. J. Aughenbaugh: Those, if you will, conflicts are what make really difficult Supreme Court cases. N. Rodgers: If you think Microsoft won't defend Office bird you're insane because they make an enormous amount of money off of that. Hillary, the process, it's what like a week, two weeks turnaround, you find out it's all fabulous. H. Miller: No, I think the average is about 18 months. I found on the website they have that they had lovely little charts where they're displaying live data on how long it's taking for this. Actually, that's not even, that's the first Office action. Because what I found anecdotally through some of the research on this is it's harder than ever to get a patent approved and it's very common for your application to be denied on the first round and you have to go back if you really think it should have been approved and revise. It's just like a publishing process. Revise, resubmit, like dispute, go back through this process. There's the traditional total tendency they call. The average number of months from filing to the date the application reaches final disposition, 24 months. That's that's a long process and that usually needs to be done before you really start marketing or selling this product in earnest because if you do that too soon and you're not patent-protected, that's a no-no. You actually risk losing your patent or at least losing some of the rights that you would have associated with it. N. Rodgers: The other thing is in 24 months, you, I would assume, would lose some investors. Like that's a long time. If you start at the very beginning with getting your investors to keep them interested before they can even see a product. Those 500,000 people are very devoted to this idea. J. Aughenbaugh: It can be hyper-competitive, that's the thing. When you file a patent application, chances are you will be aware that there are other people working on a similar invention, a similar device, so now you've got competition. I don't know about you all, but occasionally I'll buy products and it will say, patent-pending. H. Miller: Yes. J. Aughenbaugh: Hillary, when it says patent-pending, it's not necessarily a guarantee that it will be granted. H. Miller: No. Actually, I never do this before researching, doing all the research for today's podcast. That doesn't mean that necessarily only that they have filed and they're waiting for the patent office to respond. There's actually two types of applications, and one is the, non-provisional, I'm just ready to move ahead, I want you to review it for real. The other one is a provisional application, which is like declaring your early interests. Like I'm letting you know right now, I want to do this. I'm going to give you some information and you get one year to fill in the full application. It's actually that provisional one where you can say patent-pending. But you only have a year so all you're doing is marking your territory early on. You're giving yourself a little bit of extra time and I guess if you wanna go ahead and start selling the product, you can, you've marked your territory. But if you fail at the process and someone comes along and maybe improves on it and does it a little better, they might be successful. J. Aughenbaugh: Ouch. N. Rodgers: You said utility patent. Correct me if I'm wrong, but there are three major types of patents. There's utility patent, what we think of as the regular things that you patent. Meaning, I built this new cool phone and so I'm going to patent it or whatever. Then there's plant patents which we discussed briefly. Which is I am patenting this particular color of rose, shape of rose, or not just roses but every plant. I have made a new zebra-striped rose, which by the way, if anybody is out there doing that, I want one because how cool is that? That kind of thing and then there is design patents. Design patents are weird, because just for listeners, general ratification, there are things you cannot patent. You can't patent a chair, because chairs have been around since people figured out that they didn't want to sit on the ground. There's been a type of chair. What you do if you want a chair patent is you make a design like say, a wing-back chair or a fainting couch, or a lounge chair or something like that. J. Aughenbaugh: Or Ania, think the three of us are, "office workers". Think about the difference or the changes in the designs of office chairs since we've been bureaucrats at VCU. In each of those, Hillary the designs are probably patented, right? H. Miller: Yeah. But it's going to be like Ania said, it's not necessarily for the chair as a whole that's the key. It's the tiny extra curve in the lumbar area because my research has shown that this, and I've got one of those little bars behind my chair right now that, it moves up and down to support the spine. I would bet you that the first one was fixed in place and some ones that I'm going to make a movable one and they probably could have gotten a patent on that component there. Someone said I'm going to make a thinner one, I'm going to make one that's padded. Who knows? All of those things. N. Rodgers: I'm going to make it out of bean bags. I'm going to make this chair out of that or whatever. Then that way they can patent the thing that's what you were saying, captain obvious. Because if they just came up with a wooden chair and said I'm going to patent this chair. Everybody would say, "You can't do that, it's a chair." We all have chairs, you haven't made a substantive change to it or a design element change to it that is unique to the function of the chair or the appearance of the chair. Design patents are weird because a huge amount of clothing doesn't get patented because a basic sling dress is a basic sling dress. So when companies say, "I'm going to sue this person for making a knockoff," they really can't. H. Miller: Yeah. N. Rodgers: They can get grumpy and they can fuss you up in court for a while, but it's not going to go anywhere because a judge is going to say, "I can't tell these two dresses apart." H. Miller: Not for patent though, but fashion can be copyrightable because it's got creative elements. The design patent has to be basically those creative design elements for something that we could otherwise get a patent. It's the design of a device or a chair. I would bet the difference could be like, that shoes that are just made for fashion would probably be copyright. I bet, like doctor shoals and all of those ones that are specific arch support and research gone into it, I actually, I don't know. I bet those are probably patented. N. Rodgers: The difference being scientific basically. I can show scientifically that my thing is different as opposed to aesthetically. Which, is why you don't patent songs, you copyright songs because they are aesthetically different, but music itself uses more or less the same scale. Like we only have a tonal scale that humans can hear of a certain amount, so you have to make it, "okay I see." I want to ask you about something because it came up when I was looking for things that I was interested in with the patents. That is the Eiffel Tower at night. Turns out that it is illegal to take a photograph of the Eiffel Tower at night and it's because of the light pattern, that's the lights of the Eiffel Tower. It's a copyright issue. Its appearance is very specific and France wants everything in France, they're very particular about their things. I'm not trying to be ugly, but they have a whole institution that's dedicated to keeping stupid words out of their language. H. Miller: They're also one under copyright law. They have much stronger protections for moral rights, they call them, which is where an author can object to certain ways their work is used just because of the damage to their reputation. N. Rodgers: So in France no fan fiction? I take these two characters and I make them do something very adult, when they shouldn't be doing those adult things with each other. H. Miller: You make the setting right in front of the Eiffel Tower, and you've just offended. N. Rodgers: You've just offended everyone. J. Aughenbaugh: Hillary, with what you just described, you're going to spend a lot of time in a French prison. Because you basically have crossed so many lines in France. No, I'm just kidding. I don't know if you would spend any time in a French prison. But that just sounds like the ultimate offense in France. H. Miller: It's similar in patent because a lot of things in copyright, the concept is the same in both. Where the creator, the amender, whoever, gets these exclusive rights to their work. Which means they get to exclude everyone else from using them. So no, you can't take a picture of it. In patent, it's no, you can't sell my product. But there's also, and we were talking about the chairs before, you could improve on someone's invention. But if your new invention relies on a patent from someone else, you're going to owe them money. J. Aughenbaugh: Yes. H. Miller: Which to me is the most complex. I just can't imagine a more complex web of anything is these thousands and thousands and thousands of patents that exist related to every technology, in cars, phones, everything we use every day, and everyone's connected to each other and everyone's passing money back and forth and figuring out who do I owe? I think I'm making this tiny improvement to a phone, and it's built on these ten other patents. Who am I going to have to pay as a part of my new invention? N. Rodgers: Well, the thing about the Eiffel Tower, is the Eiffel tower itself was built a zillion years ago, and so it is not the issue. The issue is the lights which were put in 1985. They're under a copyright, because it's considered an artistic work. The lights on the Eiffel Tower which, by the way, I've seen the Eiffel Tower at night, it's not particularly artistic. But that's my personal opinion. But so the copy of the Eiffel Tower that's in Las Vegas is actually legal, because the Eiffel Tower itself is not patentable in the sense that it's. H. Miller: It's near. It's in the public domain. It would have been protected by copyright, but it's old enough. N. Rodgers: They can't do the lights in Vegas the way they do the lights in Paris. But am sure in Vegas they're done in neon anyway. I'm sure it's not particularly relevant. But it is an interesting nuance. The thing that I was looking at said, it's not so much the lights or rather the picture that you take, it's the sharing of the picture. You can't make money off of the picture, or you can't make likes or whatever off of the picture. You could take the picture for yourself it's illegal but who's going to find out? Who's going to care if you never show it to anybody? It's when you put it up on Instagram or your Facebook page, this is me in front of the Eiffel Tower at night, then all of a sudden you're in trouble. J. Aughenbaugh: This goes back to again, a previous podcast episode where Hillary joined us. One of the purposes of patents and copyrights is the creator, the inventor, is given, if you will, legal protection so that they can go ahead and make money. In part, it's designed to go ahead and incentivize people to be creative, right? H. Miller: Yeah. It's actually that exact same, it's the very same part of the Constitution as copyright. The only difference in the two really that far back, is whether we're talking about the progress of science, which is the term at the time and knowledge, that's copyright stuff, and the useful arts, which is the word to describe everything we're talking about. Useful arts. Everything you could have meant, everything you could make. You're right. It's the exact same idea of creating that incentive there. J. Aughenbaugh: But at the same time, as Nia's comments are pointing out, and Hillary, you just went ahead and used one of the key phrases in copyright law in particular, is something in the public domain. Because if something is no longer covered by relevant copyright laws, anybody can go ahead and use it and put it in a book, a piece of music, or whatever the case may be, because it's in the "public domain." That's where we get these pitched battles about laws being extended or laws extending, if you will, legal protection for those who own patents or who own copyrights. Because if somebody still has ownership of the patent or the copyright, as Hillary just pointed out, Hillary wants to make a small change to a phone. Phones are phones. But if somebody has a patent, and her improvement draws upon, or uses, or is based on, or can only work because of somebody else's patent, then her attorneys are going to have to negotiate with the attorneys of the owner of the patent to figure out how much of every dollar she may make, she's going to have to give to the original patent owner. N. Rodgers: I would like to cynically point out that the phones that come out every year, the iPhone 2,746 it's out now, and Samsung, and Android, they're all guilty of it is they make a tiny tweak, because that can re-up their patent. If they make a tiny tweak within their own system, they can say, we need to update our patent, which pushes out the date at which it becomes public domain further. That's why it's really smart for companies to do that on a regular annual, or every other year basis, because it pushes out their patent, which pushes out the length of time that anybody can make a legitimate copy. Because once it's in the domain, people can make a legitimate copy. Turns out with music from the '20s, which is some of my favorite jazz music, is now entering the public domain, which means that singers now can use those songs, and record those songs without having to pay any royalties to the people who wrote those songs or the people who originally recorded them. If somebody who had owned it, had simply re-recorded it 10 years later, it would push that data out 10 years, right? H. Miller: Well, It wouldn't push out the date, that's the thing about recording, its the date of the underlying composition, it could go into the public domain. N. Rodgers: Okay. H. Miller: But each recording can get its own copyright. J. Aughenbaugh: Yes. N. Rodgers: Got you. H. Miller: Once it's in the public domain, everyone can record that same song over, and over again, they only get the rights to their particular version of it. N. Rodgers: Oh I see. What I was saying about phones though is accurate, if you make a change to a phone. H. Miller: At some point the underlying patent could probably expire, but you have this cascading effect of all of these tiny functional changes over time that builds your system, the system won't work. Your particular way of creating this thing is still not going to be replicable because you have made, I was just keeping it as proprietary as possible. You've got to do that, and keep making those changes. Yeah. N. Rodgers: One of the brilliant masters of that was Walt Disney, who manage to keep Mickey Mouse. The Disney Corporation has managed to keep Mickey Mouse under. H. Miller: Copyright extension of the term. N. Rodgers: Copyright. H. Miller: Actually, you made a point that made me, I don't know what I really wanted to discuss with both of you because I think it's interesting is that copyright has undergone and corporations like Disney right have lobbied for extending the term of copyright. When copyright law, and patent law came out at the same time, the constitution said you've got to do this,1790 was the first patent because you get the first Patent Act, I believe, came out in the US that's when they were open for business, I think. But copyright used to be a much shorter term, I think it was 14 years. N. Rodgers: Yeah. H. Miller: [inaudible 00:39:58] It's 14 years, you could renew for another 14, and right now the standard is the life of the creator author plus 70 more years. J. Aughenbaugh: Years, yes. H. Miller: The term shorter than what patent is now. Patent is a 20-year term and I believe there may be some like five years, a few years extension for maybe things like drug discoveries, medical devices, or that kind of thing. But can you imagine a world in which proprietary pharmaceutical drugs could be kept under patent for 100 years? Maybe the life will be for 70 years or something like, no generics after 20 years. N. Rodgers: It will be horrible because the price would never come down. H. Miller: That's what copyright is. N. Rodgers: If somebody could get a patent on a drug, cancer, life-saving drug, and they kept it for 150 or 100, and however many years it is for the life of the patent, for the same as copyright, you're right, it would be horrible because they could charge whatever they want. In some cases we know they would because we saw that guy with the herb treatment who raised to 700 percent when he bought the. J. Aughenbaugh: Oh yeah. N. Rodgers: [inaudible 00:41:21] Shrink Keeley, I can't remember his name, but anyway, and he said he did it for his shareholders, he was trying to make money for his shareholders. You could justify it in some way like that, but it went up enormously, and people couldn't afford it. H. Miller: That's what I think illustrates too to me, with every copyright term extension, I think it's gone to the Supreme Court and the Supreme Court said, well, look, the constitution says it has to be limited times, and 20 years is limited times, 50 years, 70 years, it's all limited time. It's fine, but I think it's not still serving that underlying purpose we're trying to promote progress of science, and useful arts. In that way, I think patent does a better job because you get the ability to create, for example, generic drugs in a much shorter turnaround. With copyright, the length is so long and I think there's a case to be made there when the songs you're talking about fall into the public domain, they get a new life, they get a new life by people being able to use them in all new creative ways, and that may not be paying the original author, creator, but that's not the purpose. The purpose is not necessarily for the person to get paid, the purpose is we want to promote progress of science, and useful arts. The best way we've thought to do that is to make sure people can get paid for a limited time. N. Rodgers: Well, and in the case of art, we don't pay Vermeer, but we go stare at them because they're beautiful, and we celebrate H. Miller: Museums, which creates jobs. J. Aughenbaugh: Exactly. H. Miller: Which enriches the culture, you don't need copyright anymore at some point. N. Rodgers: Each next-generation comes in and goes 'wow', that's amazing. It perpetuates the, yeah. H. Miller: We're trying to create things that I think the longer term positive impact of them is really when that protection expires, and everyone can find new ways to use them. I think it's fascinating, and this is something I don't know, maybe either of you do, has anyone ever tried to lobby, to extend the term of patents? N. Rodgers: Pharmaceuticals do all the time. J. Aughenbaugh: Yeah, pharmaceuticals have. N. Rodgers: But they lose. J. Aughenbaugh: Well, what's interesting, what we frequently see as the source of court cases is pharmaceutical companies or companies of other medical devices and improvements, when their patents are about ready to run out, they will actually pay a premium to their competitors or those who might make generic versions of their drug or their medical device to not produce. H. Miller: It may be less money than you'd make producing, but it's easier money. J. Aughenbaugh: Okay, and at times. N. Rodgers: It's quid pro quo. J. Aughenbaugh: Yeah. I mean. N. Rodgers: Because then we won't make a generic of your thing if you won't make a generic of our thing. H. Miller: Oh, my goodness. J. Aughenbaugh: Some states have attempted to break those kind of arrangements under the logic that it is anti-competitive. Okay? In many state and lower federal court judges have practically begged the United States Congress to go ahead and clarify this. Because for consumers, you're talking about prices remaining, you could argue artificially high for essential drugs and medical devices. The logic of the companies is, we dumped a whole bunch of money upfront, and we are now finally beginning to see positive net revenues to offset all of our costs. This is a very controversial practice, if you will, and it's all related to, if you know as Hilary described it, the limited amount of time you get patent protection. H. Miller: The question is whether that time is really calibrated, I guess to the state of the industry. Is 20 years enough to really start seeing the underlying thing to keep promoting, to keep inventing, to keep creating. Because that's the incentive. You shouldn't just be able to cost, or you shouldn't be able to invent one thing as a company and cost along on it for 100 years, you've got to keep improving and inventing. J. Aughenbaugh: Where's that sweet spot? Is 20 years too short? Is 50 years too long? Where is that sweet spot? N. Rodgers: Well, in pharmaceuticals the market is complex because they make more of their R&D money back in the United States than they make in most other countries in the world. You also have a nuanced issue of how many people in the United States does it take to make up the R&D cost? Because the R&D cost is often not made up in other parts of the world because they're sold at cost or at very minimum rates above costs because of the way those governments negotiate contracts with pharmaceuticals, and/or because some people are just too poor to pay any more than it costs to make the actual pill. H. Miller: Nia, there are governments that don't let pharmaceutical companies charge consumers whatever they want. N. Rodgers: I know. Shocking, isn't it? But one could argue that in flip of that, what pharmaceuticals would say in terms of them. H. Miller: If everyone did that. N. Rodgers: If the richest country in the world rather was not willing to foot the bill, we wouldn't be able to afford to do these drugs, we wouldn't be able to afford to go out and experiment because for everyone that they find that works, there's hundreds that don't, and they've thrown away all that money. That's why with the vaccines when we were talking to Dr. Twigg and she was saying the reason that the federal government bought into a whole bunch of different vaccine makers was that somebody had to get it right, somebody who was going to make it work, and we needed to bet that on all of them because we weren't sure who it was going to be. Turns out that a lot of them were able to make it work and that's great, because of a lot of the pre-work that had been done. But we got lucky with that. I know the rest of the world right now doesn't feel particularly lucky, so I'm not trying to be blase say about that. But we as a world got lucky about that. J. Aughenbaugh: Speaking of COVID-19 vaccines, Hilary, did you see this week that there is a dispute between Moderna and the United States federal government because Moderna's patents for their COVID-19 vaccine was a shared patent. You had researchers working for Moderna, but also researchers for the federal government who are both listed on the approved patent application. N. Rodgers: The ones in Moderna or? H. Miller: There is a specific line. Well, in some of my reading, I saw that said, I think you used the word dangerous, it is dangerous to jointly apply for a patent for an invention. If you have not already worked out in writing exactly how those right-sharing is going to work because you can both do whatever you want, so you better come to an agreement. J. Aughenbaugh: That's part of the dispute. Again, Nia was talking about the big rush to go ahead and find hopefully a vaccine. We ended up with multiple vaccines that proved somewhat effective at minimizing the rate of incidence or minimizing the scope and severity of the illness. But I was just fascinated by this. One of the things I wanted to ask you, Hilary, was this, how often can government researchers and employees be listed as holders of patents? Because the federal government, not only does it outsource contract with third-party vendors to do a lot of research, but a lot of government bureaucrats are subject matter experts who do a lot of cutting edge research. You know how often government employees are patent holders. This strikes me as something that most government agencies would say, you can't be a patent holder. On the other hand, think about research universities. N. Rodgers: Do individuals who work for the government earn the patent or does the agency with which they work? Isn't that one of those things where if it's part of your work is the agency then the agency owns? Just like if you were at VCU and you were doing research in a lab, you are at VCU, but you were doing it on VCU's dorm and under VCU's whatever umbrella, then it would belong to VCU, not the individual. Or does it jointly belong? H. Miller: There's something called, in terms of government-funded research and where VCU falls into this, there's something called, I believe it's pronounced the Bayh-Dole Act, which was passed by Congress in 1980. Before that, I believe the case was, at the NIH of the federal government-funded research, they were the owners of that. What this act did, which I presume it was trying to incentivize research, promote commercialization, all the things that the research universities are really pushing right now is that even if you get this federally-funded research, the university or even individuals could be the owners of that research or the industry partners they work with or that kind of thing. It was letting them take on those rights. Then at the VCU level, VCU will own it. But there is like it's that same licensing regime. There is a cost-sharing or revenue-sharing agreement with individuals. Now, I don't know as much how this plays into if the NIH is a co-inventor, if they owned the patent on this. I know that employees of the patent and trade office can't own patents. Or at least maybe they can't apply for them while they're working there. But I don't know what the NIH would do. N. Rodgers: That's why we're going to court on this. H. Miller: Do they want to licensing and make a bunch of money? Do they want to give away the right to reproduce this vaccine for free? N. Rodgers: The NIH did part of the research, but this comes back to Augie's absolute rule in everything which is understand administrative law please if you're going to try to run a country. Because what should have happened was they should have negotiated with Moderna. Before they ever started working on something, they should have had an agreement that said, we will each own 50 percent of this patent or something. J. Aughenbaugh: There's any number of ways this could have gone to where we now don't have a dispute with the second most effective, or one of the two most effective COVID-19 vaccines. Because this just really looks, if nothing else, it just has the appearance of looking bad. N. Rodgers: Well, it looks rushed and disorganized, which it was, rushed and disorganized. Hillary, you may not notice, but one of Augie's tenants of the Trump presidency and he's not trying to be ugly and he's like imagine what Trump could have done if he had people who actually understand how to use administrative law. How to use the Code of Federal Regulations, how to announce things and bring them in within the way the law works. J. Aughenbaugh: Because in most presidential administrations, they would have gone ahead and invented this through, and it would slow things down. But they would have ended this through the attorneys, through the impacted agencies. J. Aughenbaugh: Again, this is a COVID-19 example. It takes us somewhat away from the topic of this episode, but there's a reason why it took the Biden administration a couple of months to come up with the OSHA employee vaccination emergency regulation. It was an emergency regulation and they cranked it out in two months and people were complaining, well, when is the Biden Administration going to announce this? Well, according to its authorizing legislation, OSHA has to go ahead and vet it before they go ahead and announce it. If they don't, that's where they run into trouble. They still might run into trouble, but they're less likely if, Nia, Hillary, the three of us, we all know this because we work at VCU. You've got a dog arise, you got to cross your tips. Sometimes it's a pain in the butt, but that's what you do because you work in the government. N. Rodgers: You don't ever just go out and buy a thing. You have an internal requisition that goes to a person who signs it, that goes to another person who signs it. It goes to a finance office who makes sure that you're buying it from the right person. Then you're allowed to buy the thing. If you go buy the thing and it doesn't fit any of those, guess what, you bought a thing for yourselves. The university is not going to pay you back. I hope you didn't buy a jet because that's not the vender we buy jets from. J. Aughenbaugh: To bring it back to the podcast, Hillary, to your point. If the purpose of patents and copyrights were to promote, servant, if you will, goods, either individual or collective, how do we achieve those? This is where the conflict arises. This is where you got to manage the pros and the cons, or if we do X and it benefits the individual patent holder, what will be the cost to the collective, right? N. Rodgers: Right. I like Hillary's idea of making copyrights the same length as patents. In the sense that you should be able to make money off of that for a certain length of time because you wrote it or you signed it or you built it or you crafted it in some way. There should be some celebratory amount of time that you make money. Maybe that's the end of your life. Maybe it's the day that you die that stops being a thing that you own, your estate. H. Miller: Shouldn't get 100 years or a lifetime. N. Rodgers: Well, and didn't create that thing themselves. J. Aughenbaugh: We're anti-heirs on this podcast? N. Rodgers: I am. But I don't have offspring, you have offspring. I'm just saying, it's every person for themselves in my world. Actually, I'm with Henry that if on the day a song composer died, their songs moved into the public domain, then more people would record them, do interesting things with them. More generations would hear those songs and had heard them before. H. Miller: The companies who actually own all of the rights, they love it when they die because we're going to make a retrospective. We're going to license to show all of their old concerts on TV. We're going to release a whole bunch of merchandise. We're going to release the collector's edition on vinyl. That's a cash cow. J. Aughenbaugh: Well, think about the debate that broke out when Prince died in regards to how his copyrighted material would be packaged, manufactured, sold, etc, because we're talking big box for some of your better known artists. N. Rodgers: His will apparently was unclear. Can I just suggest to all the patent holders and copyright holders listening to this podcast or people who will eventually be one of those people listening to this podcast, please have a will. It's a small but important thing. Everybody should have a will anyway. But if you have anything where people will fight over it, you should fix that before you die. It's just a kind thing to do to your heirs. It's to make it clear what you want done with your stuff because I don't think Prince expected what happened after, and I don't think a lot of people do. I think they think, "Oh, my family will be fine. They'll all get along." I'm like, "Not with money." Money makes people bananas. But I agree with you, Hillary, that's an NC for me. That's another reason why that copyright should stop then so the companies can't exploit. It's the Elvis blues years. No, stop. Let's just let Elvis rest in peace, please. Although I'm not entirely certain, but you know what I mean. Conspiracy theory. I am actually saddened, by the way, that Elvis is dead and so is Jim Marks. Both of those make me sad. J. Aughenbaugh: Speaking of Elvis, because Christmas is just around the corner, one of my prized vinyl LPs is the Elvis Christmas. He's got a version of a blue Christmas. That is just phenomenal. For listeners, if you're looking for a good Christmas album, I highly recommend the Elvis Christmas. N. Rodgers: Which I feel certainly the copyright is owned by Lisa Marie. H. Miller: We could probably get a snippet of that at the outro for this episode. It's just for fair use. N. Rodgers: For me, rather not. H. Miller: But only because it's too early for Christmas music, not because we don't believe in the power of fair use. J. Aughenbaugh: Hillary wants to see listeners, Nia, and I sued. N. Rodgers: Go to jail. This is her secret plan to take over the podcast. She wants us to be in jail so that she can make it the open access copyright podcasts. Hey, Hillary, thanks for coming today. H. Miller: Thank you so much. This has been a lot of fun. N. Rodgers: We really appreciate it. We appreciate your good humor about this because we know we're silly about this, but we also know it's serious stuff. I want to end with, if anybody on campus has a copyright question or a patent question, and they are concerned about their intellectual property, you really do need to talk to Hillary Miller at the library. She can help you. We'll put her picture up and you'll be able to find her information there as well. We'll have her email address because you need to protect yourself as much as you can, and or you need to consider alternate ways of publishing your materials. She can help you with both, open access and copyright. Thanks so much. H. Miller: I'll also throw in a plug for VCU Innovation Gateway. If you're working at VCU or a student in VCU and you think you might have an invention, make sure you talk to me and I'll get you to them or talk to them first. Don't go spreading the word just yet. Don't tell me your search terms yet. No, you can't do that. N. Rodgers: No, don't tell me your search terms. Talk to Hillary. Thanks, everybody. J. Aughenbaugh: Thanks, Hillary. Thanks, Nia. Announcer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.