Inventor Beware In-Fisherman July 2nd, 2012 | More From In-Fisherman Share0 Tweet Email Share on Facebook.Share on Twitter.Share on Google+How to Make a Million on Fishing “The invention-development field is loaded with con men, rip-off artists and downright crooks. At any given time, a number of them are being prosecuted for gross misrepresentation and fraud.” -Invention-development company brochure. So you invent miracle lures and must-have accessories. Wanna make a million, you say? Step right this way, there’s a bridge in Brooklyn you simply must see. Want us to look at your invention? Leave a card. We’ll call you. Not that we mean to be brusk, but we’ve seen ‘em all. Dispensers attached to lures that release scent products “only as needed.” Combination hook remover, bottle opener, fish finder, barometer, scalers. Lures that set hooks for you. Hooks that remove fish for you. (I’ve been using those for years.) Tackle boxes that weigh ‘em, scale ‘em, debone ‘em, and phone home. “Bassomatic” fish scalers. Lighted bobbers with back-up lighting systems. The “Aerodynamically Reusable Sinker.” It goes on and on and on. Our wobbling desks are overburdened with plans for everything from jigs that tie themselves on your line to a carrying case for tip-ups. Someone sent us blueprints for a tip-up that fires flares. Should you buy it or fireproof your ice house in case somebody else does? We’re on this invention-development house hit list, supplying us not only with fishing gadget “breakthroughs,” but lots of other things. Unbelievable things. “Brain Bran,” for instance, increases your IQ by “50 points per bowl.” If you have any IQ to begin with, 4 bowls of Brain Bran and you’re smarter than Einstein — from Archie Comics to quantum physics before lunch, and regularity as a bonus. It’s hilarious until you realize someone invested a portion of his life and his life savings inventing, testing, patenting, and attempting to market these things. For every successful invention there are 200 tales of misery. Apparently the medicine-show era just never died. P.T. Barnum said, “There’s a sucker born every minute.” Some companies are busy proving him right. And like the Dr. Cure Ails and their amazing snake oils of earlier times, they deserve a fond tar-and-feather farewell. A few of these companies tried to tar and feather me, companies willing to take money for ideas already patented or ideas so incredibly backward they couldn’t possibly succeed. Their insistence on having prospective clients check them with regulatory agencies like the Better Business Bureau made it hard to tell the bad guys from the truly rotten ones. Even so, all is not doom and gloom for inventors. A modern fishing Edison pops up every so often. We mean to enlighten, not discourage. It’s not our fault that the system creates a long, hard road between idea and profit. If you have an idea you think will revolutionize fishing, go for it. Good ideas are worth time and effort. But even the brightest ideas won’t survive a trip down the inventiondevelopment road for someone unaware of the pitfalls. Take me for instance. FRAUD Worthwhile inventions reach the market through many doors. You can get a patent. You can get a trademark. Or you can skip the usual process and put all your time, effort, and money into production, sales, and distribution. If you go the patent route, you start with a patent search, best accomplished with the help of a patent attorney. You can find your own or go through one of many invention development firms. You might find them advertising their services in the back pages of certain outdoor magazines: “Inventors: Free Information!” Ideally, these firms would make money through careful screening. They would pick the best ideas, help inventors market them, and keep a small percentage of the royalties in perpetuity. But the Practical Inventor’s Handbook, by Orville Greene and Frank Durr with John Berseth, says that, “only a small part of a patent-promotion group’s profits come from royalties. The mainstay of the businesses are fees received from inventors . . . be wary of those who fuel your fantasies.” Deborah Malewicki, program manager for the Wisconsin Innovation Service Center, affiliated with the University of Wisconsin, says, “Inventors not only want to believe their idea is patentable, they typically believe it’s a major breakthrough. Many of these firms just tell inventors what they want to hear.” I decided to see how far some of these companies would go to make a buck. I filled out applications from every invention-development firm I could find. I sent legitimate ideas, but for hooks and tackle already patented. All firms responded with letters of “Congratulations! We reviewed the information sent us and your invention passes our initial screening.” Initial screening, they tell me, is based on originality and marketability. Well, we already know fish hooks are marketable, but just how original was my idea? The letters urged me to send from $200 to $750 for a patent search. Apparently prices vary wildly from company to company for the same basic service. I decided to go one step farther with one of the firms. Using a product already patented by Gary M. Young of Michigan, something called the Sure-Set Hook, I applied for a patent search and paid the fee. The firm responded, claiming the coast was clear; they had turned up no conflicting patents. Hmmm. Now all we had to do was send them another $2,500 (minimum) for “patent application expenses, legal filings, submissions to industry, and followup work.” All this just to get moving in the attempt to patent my brilliantly original though slightly patented idea. They established deadlines. I was to have my paperwork (the most prominent document being my signed personal check) completed within three weeks. The most I’d have to pay, they told me, was $10,000 to get the Sure-Set Hook patented (again). Ok, maybe they goofed. Could be an oversight, right? Even the Patent and Trademark Office of the U.S. Department of Commerce occasionally issues a patent on something already patented, right? (Unfortunately, that’s right.) Giving them the benefit of the doubt, I started a second campaign. This time I invented something original. There’s nothing on the market quite like it and God willing there never will be. It’s a scent product I called Salamander Essence, submitted to some firms, I’m deeply embarrassed to admit, as Hawg Slop. I filled the application with red flags. The salamanders used to brew the concoction were described as an endangered species. The recipe included “waste solvents” obtained from a local factory. “Which I suspect is why the stuff glows in the dark,” I wrote. I included two products already trademarked: Aunt Jemima Pancake Syrup and Vaseline. With a few fish skins, everything goes into a blender and voila. Salamander Essence. With no preservatives in the recipe, I warned, “Leave it in the sun and it gets nasty, but it still works.” Applications were sent to a dozen firms. They all liked it. (Hey, Mikey!) Each firm congratulated me on my inventive spirit while making a spirited appeal to my pocket book. We paid one company $200 for a patent search. They responded with an “Opinion of Patentability” from their patent attorney. I was in. In fact, they liked Salamander Essence so much they asked me for $4,950 to file a utility patent application with “no guarantee that a patent will be issued.” No guarantees exist in the invention business, but why ask for so much up front? Maybe they figure anyone stupid enough to come up with Salamander Essence is stupid enough to pay them five grand with the immediate stipulation that he might lose it all with no recourse for reimbursement. And where would it end? We didn’t care to invest the capital to see how far they might lead us down this splendiferous primrose path. All we know is that $5,000 represents a plenty big cut to a company that probably suspects the idea is going nowhere. I mean, if they don’t know “Hawg Slop” is going nowhere, would you want them on your team? Worst of all, I’ve received calls at home from several of these companies. They lecture on moving swiftly, being aggressive, having faith in my idea-propaganda designed to loosen my grip on our savings account. But that’s all right. Maybe they received a call of their own. Michael Blommer, executive director of the American Intellectual Property Law Association, advises us that the Federal Trade Commission is in the process of investigating several of these firms as our story goes to press. THE PROCESS Maybe you do have an idea that’s going to revolutionize the way we fish. And we certainly don’t want to squelch it. Before your idea can go anywhere in the marketplace, however, it has to be painstakingly researched. It’s possible — though extremely unlikely — it hasn’t been thought of before. Herb Reed, the inventor of the Slug-Go soft-plastic stickbait, said he once “invented” a new hook style only to discover it had been patented 50 years before. Even before researching the idea, disclose it to a patent attorney before anyone steals it or “invents” it after the fact. Or just run with it. John Peterson, owner of Northland Fishing Tackle, says no lures in the Northland lineup have patents. “Patents might be a good tool and nice to have, but they’re costly and time consuming,” he said. “Get a patent and you spend the rest of your life trying to enforce it. I’d rather trademark the name and spend my resources filling the demand for the product before other manufacturers can cut into the surplus.” Joe Hall, president of Blakemore Lure Company, Inc., has a trademark on the Road Runner jig because “a trademark is easier to defend. The McDonalds Golden Arches are trademarked. Other restaurants can use arches in their logo, but not if they’re confusingly similar to McDonalds’ arches,” Hall states. “Others have tried to copy the Road Runner and we’ve stopped them because it’s fairly easy to prove that a design is confusingly similar to ours by having any impartial witness compare them in court. “To be honest,” Hall continues, “1 see no need for a trademark or a patent, in most cases. In fact, most new lures are not patentable because they’ve appeared before or are too similar to other lures. If you have an idea for a new product, first make certain you’re not infringing on someone else’s patent or trademark. If you are infringing, you’re throwing away money. You can be in business several years before discovering you’re infringing on someone a half continent away.” To be certain you aren’t guilty of infringement, you need a patent search and a trademark search. As illustrated, trusting invention-marketing firms alone to research the originality of your idea might be a mistake. Do some research yourself, like checking every available catalogue, warehouse, tackle shop, and tackle manufacturer to make certain your idea isn’t already on the market. If you phone these places, don’t tell them you have an invention. Their eyes will glaze over. Describe the product and ask if they have anything like it in stock. Don’t worry about their stealing it. In this business, public relations people are a long way from research and development. And it takes R&D light years to get anything new past management. Go through every catalogue available that might carry an item like yours. Scan the shelves of department stores and sporting goods outlets in areas where the idea would be most practical. (In other words, don’t look for lobster traps in Iowa.) When you’ve gone at least that far without finding a similar product, it’s time to go back to your attorney. Your troubles are just beginning. Malewicki reiterates that, “It costs thousands of dollars to get a patent. The U.S. Patent and Trademark Office recently raised its fees by 69 percent. And patent attorneys, even at the low end of the scale, cost thousands more.” And because businesses are now flooding the same office with applications for trademarks, that process is becoming quite spendy as well. Can you proceed without an attorney? Risky business. Laws, remember, are written by lawyers. They guarantee themselves a comfortable living by making it difficult to engage the bureaucracy without them. And the bureaucracy itself frowns on unassisted individuals applying for patents. Gary Storm, president of Storm Manufacturing Company, in 29 years with the fishing industry, has applied for many patents both with and without attorneys. “You don’t have to hire an attorney,” Storm said, “but bureaucracies don’t respect individuals much. They tend to throw fewer questions and roadblocks at applications forwarded on the letterhead of a professional.” To apply for a utility patent (the most desirable kind) you need a working model of the invention and a professionally prepared blueprint showing how the various parts work together to perform whatever function makes your lure, planer board, belly boat, or other invention unique. That’s the hardest part. “It’s difficult to come up with a new idea,” Storm said. “Things people think are unique rarely are. They often find that their ‘invention’ was patented decades before, never to make a splash — sometimes never even appearing on the market because the inventor ran out of money before he got it there.” REALITY What if you make it to that next level? What if you actually achieve the nirvana of being patented or trademarked? Your cash-flow problems are just beginning, along with other burdens. Continue down this road and you walk in the shoes of a pariah. Nobody wants to see you coming. If the idea survives the patenting process, which takes 1 to 3 years, you have to be: (1) wealthy and wise enough to finance your own manufacturing and distribution, or (2) ready to beat some shoe leather looking for a “friend” in the tackle industry to take on the risks of production and distribution. The pie-in-the-sky outcome might include royalties. Don’t hold your breath. Want to do it on your own? “Tooling a die for one injection mold to manufacture a lure can cost as much as $15,000 to $20,000,” patent attorney Douglas Tschida warns. “I don’t care who you are, that’s high-stakes poker.” Hall says to compete you need a sophisticated computer system for distribution or “you’ll never be a national player.” Cost? Another $10,000 to $20,000 for starters, with annual upscaling at thousands more. Want to make new friends? Tackle and marine manufacturers will slam doors in your face and start hacking at any toes left malingering inside. That’s because more than 75 percent of all new products fail after being submitted to the most rigorous marketing examinations imaginable. Only about 1 percent of all ideas submitted even get considered for market examinations in the first place. A government-sponsored group established to help innovators estimates that less than 1 in 100 new ideas ever makes a dime. And most lose mucho dinero. Just because it’s a good idea doesn’t mean it’s marketable. Just because it’s marketable doesn’t mean you’ll find somebody trustworthy enough to push the right buttons for you. Finding the right buttons doesn’t mean you’ll have enough capital to get it past the sharks — corporate copycats, attorneys, industry patrons, patent counselors, and various bureaucrats. According to the Minneapolis Public Library, 1,248 patents were issued in the United States under the heading of “Fishing, Hunting, and Vermin Destroying” between 1981 and 1989. “But some fishing patents fall under different headings,” explains librarian Bill Johnston. “Fish attractants would be under chemical headings, fish finders under electronics, rod holders under marine equipment, and so on.” It was impossible to find them all, but Johnston estimated that easily thousands of patents were issued for fishing devices in the past decade. Of over 5 million patents filed with the U.S. Patent and Trademark Office, assume that tens of thousands of fishing-item patents are now on record. And the Practical Inventor’s Handbook says “The volume of inventions related to fishing is on the increase.” Among thousands of new patents, how many made profits? Most inventors lose money. Some break even, and a paltry few make a pocketful of sheckles. Another reason inventors get shafted? All those industry magnates who slam doors in your face wait to see if a product succeeds. If it does, they copy it. A piece of plastic here, a different paint job, a new name, and presto: completely different product, right? Wrong, but it doesn’t matter. They often get away with it. They have more clout than inventors, more money than the small operator. More and better attorneys, too. “It’s easy for larger companies to outcompete inventors,” Reed warns. “When large companies move quickly, they produce more product in a shorter period and flood the market, usually at a price low enough to push the inventor right off the shelves.” “The validity of a patent is only as strong as your ability to defend it in court,” Storm adds. “The cost of getting a patent is high, but only a fraction of the cost of defending one.” Storm’s second lure, the Thin Fin, was introduced in 1965. Another much larger company produced an exact duplication when the lure’s popularity went off the charts in the Southeast. “We vigorously prosecuted and won the case,” Storm said, “but maybe we lost the war. They played delaying tactics to cost us money, and it worked. We spent time and money in court that would better have been spent on new projects.” Storm also admits that it’s rare in his industry to win such cases. Why do these things happen in this country where opportunity for the little guy is supposedly sacred? Maybe it’s everybody’s fault. “As an inventor and a fisherman, I think the best thing the average angler can do is buy original products rather than imitations,” Reed states. “That will put more original products on the market. The whole tackle industry has fallen into this trap of copying someone else or adding bells or whistles to something that’s been around forever and calling it new.” So you wanna make a million? Whatever route you take, it’s going to be a hard road. Is it worth it? Consider this excerpt from an aid booklet published by the Small Business Administration: “If you continue to believe in your idea after looking at the odds and obstacles, you are being unreasonable. Exactly as you should be. You’re in good company.” George Bernard Shaw observed, “All progress is made by unreasonable people. Reasonable people adapt to the world around them; unreasonable people try to change it.” But for most folks most of the time, the best way to make a million is not to spend it on illusions. RESOURCES The Patent Process To get an idea patented with the least possible blood letting, you need a plan. Patent attorney Douglas Tschida of St. Paul, Minnesota, has several fishing-industry clients, including Jig-A-Whopper, Reef Runner, and Quick Change Systems. The first thing Tschida discusses with a prospective client is cost. “It takes 2 years on the average for most fishing items to get patented,” Tschida said. “Fees are paid along the way. The average cost is around $2,500, with the high end running about $5,000. That includes my fees and Patent Office fees.” Early on, Tschida also discusses the idea’s marketing potential. One option is to see a consulting firm like The Wisconsin Innovation Service Center. They look at your idea from 33 market-oriented angles. Remaining steps in the patenting process are condensed from a booklet compiled and written by Tschida. In the booklet, Tschida advises the following: Disclosure — Provide the patent attorney with a complete description of the invention, including past designs, photographs, prototypes, drawings, and written descriptions. Include comments on competitive products and the advantages of your invention. Disclosure Document Program — Instead of the legally questionable practice of mailing themselves a registered letter, inventors should establish the precedence of their invention by filing a disclosure document with the United States Patent and Trademark Office. Patentability Search — A patent search provides specific information on prior U.S. patents relating to your invention, so further decisions can be made. Typically, patent searches must be carried out in the study room of the Patent Office in Washington D.C. Your attorney hires someone at up to $150 per hour to do this. Total cost depends on the complexity of the matter being searched. Application — If the idea is patentable, the next step is the patent application, which consists of a written description of the invention, a set of drawings of the type required by the Patent Office, and a set of verbal claims that identify the scope of desired patent protection. More drafts may be required. Prior Art Statement — The application process is evolutionary. It requires attention and continuing input. You have ongoing obligations to disclose to the patent office design changes as they occur and to point out relevant patents you discover. Examination — Nine months to a year after filing the application, a Patent Examiner conducts an independent search and evaluates the application to determine whether the invention is new and useful. The examiner’s response commonly rejects one or all claims by the inventor. Even if the examiner intends to allow the application, he or she may reject it until you make a more definite statement of what your invention is not and thereby constrain the scope of any issued claims. Review — Time is allowed to review the examiner’s comments and respond. Preparing a response incurs more fees. You may choose not to proceed at that point. Issue and Maintenance Fees — Assuming the claims are allowed, it’s necessary to pay an issue fee. Thereafter, periodic maintenance fees are due prior to the fourth, eighth, and twelfth year anniversary dates. Business Decision — Patents represent business tools, as do trade secrets, trademarks, and copyrights. Each tool has its use, but how or when you use them or if you decide to acquire them at all are decisions you must make independently. While the patent process may be time consuming and expensive, costs are spread over time. As with other business decisions, continually weigh costs versus benefits and decide the final outcome for yourself. Is Your Idea Going To Get Noticed? You’ve just come up with a great idea for a new invention and it’s going to revolutionize fishing. But is it good enough just to have a great idea about a new product? Probably not. The Innovation Service Center at the University of Wisconsin (262-472-1365) considers each new idea submitted in 33 ways and you should consider addressing as many as possible to help get your idea noticed: Legality—————- Durability—————- Distribution————— Promotion——————- Safety—————- Existing Competition—————- Perceived Function————— Appearance——————- Environmental Impact—————- Potential Competition—————- Existing Competition————— Price——————- Societal Impact—————- Function Feasibility—————- Potential Sales————— Protection——————- Potential market—————- Production Feasibility—————- Stage of Development————— Payback Period——————- Product Life Cycle—————- Stability of Demand—————- Investment Costs————— Profitability——————- Usage Learning—————- Consumer-User Compatibility—————- Trend of Demand————— Product Interdependence——————- Product Visibility—————- Product Line Potential—————- Research and Development————— Service——————- Marketing Research—————- Need————— Functional Superiority————— Trademarks Versus Patents A trademark is a word, name, or device a manufacturer or merchant uses to distinguish his goods from others. Registering a trademark with the United States Patent and Trademark Office offers some advantages. It provides evidence of exclusive ownership, gives grounds to the claimant to take action against possible infringement, and can be recorded with U.S. Customs to prevent importation of infringing foreign goods. In most cases, you must take infringers to court to protect a trademark. Federally registered trademarks can be renewed every 20 years. A trademark is considered abandoned when it’s not used for two consecutive years. The subsequent user of a mark can then claim exclusive rights. Patents fall into two categories: utility and design. Utility patents protect the function, chemical mixture, or mechanical process of an invention. Design patents protect the shape or design of an item. A utility patent is considered better in the fishing industry because protection may envelope movement, composition, and function. Patents granted by the federal government exclude others from making, using, or selling an invention (if you can successfully challenge them in court). Patents must be maintained by paying fees to the Patent Office over a period of 14 years for a design patent, 17 years for a utility patent. After that time a patent cannot be renewed and the invention enters public domain. Similar to a design patent, trademark protection can include the shape or design of a product. Joe Hall, president of Blakemore Lure Company, Inc., trademarked his famous spinnerhead jig called the Road Runner. He was subsequently challenged in court by other manufacturers. Challengers said the Road Runner should have a utility patent rather than a trademark. Ironically, Hall set out to prove the opposite of what he would have to prove had he obtained a utility patent: that shape had nothing to do with function, rather than the other way around. “We were challenged twice,” Hall said. “But we were ready. We made another lure with a spinner attached to the head that had a different shape. It performed the same function as the Road Runner, which helped us maintain the validity of our trademark.” Protect Yourself The American Intellectual Property Law Association has a booklet called How To Protect and Benefit From Your Ideas. It’s available free at their website and includes a chapter on fraudulent invention-development companies and a wealth of other information. The Small Business Administration offers booklets on patents, trademarks, legal protection, and starting a new business. The American Bar Association publishes booklets defining patents and ownership rights, selecting an invention promoter, and other topics. To check the credentials of a consulting firm or invention-development company in your area, check the phone book under state government for the consumer fraud agency or other bureau of the justice department. If the company is located outside your state, contact the Federal Trade Commission (202-326-2222) or the Better Business Bureau, (703-276-0100). Ask if complaints or civil suits have been filed against the firm in question. Fraudulent firms change names often, so be wary. Get a list of satisfied customers. If the company won’t supply phone numbers for at least 25 clients, move on. Share on Facebook.Share on Twitter.Share on Google+ Share0 Tweet Email Load Comments ( ) Don’t forget to sign up! Get the Top Stories from In-Fisherman Delivered to Your Inbox Every Week To sign-up for our newsletter, check this box and submit your email address below. If you sign-up, then you acknowledge that your email address is valid, and that you have read and accept our Terms of Service Even More uncategorized Show More Get the In-Fisherman Newsletter FREE! Get the top stories delivered right to your inbox every week. To sign-up for our newsletter, check this box and submit your email address below. 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