trademark, patent, work, year, attorney, file, started, law firm, business, provisional patent applications, utility patent, startups, invention, product, legal, fun, design, good, option, law
Devin Miller, Damon Pistulka
Damon Pistulka 00:02
All right, everyone, welcome once again to the faces of business. I am your host, Damon Pistulka. And I am so excited today for our guest, because we have Devin Miller here from Miller IP law. Devin, thanks for being here today.
Devin Miller 00:15
Hey, thanks for having me on. I’m definitely excited to be here.
Damon Pistulka 00:19
Yeah, well, we, we got to talk and we’re a minute or so behind, we got to talking and we were covering some stuff we’re gonna be talking about today, it’s gonna be a lot of fun. But Devin, we will start off by understanding a little bit more about our guests in the background and how you got where you are today. So could you share a little bit of that with us?
Devin Miller 00:42
Oh, yeah, that’s, that’s a story in and of itself. So
I’ll try to give the condensed version. So that doesn’t take up the whole podcast. So,
Devin Miller 00:48
you know, I would say my theme throughout the vast majority of my life, at least in high school college timeframe has always been a love of startups and small businesses, and entrepreneurship. And so I went off to or this is a background in education, I ended up getting four degrees, which my wife always jokes is three degrees too many. But I went off to undergraduate and got a electrical engineering degree as well as a Mandarin Chinese degree. And then when I went off to graduate school, I ended up going and doing an MBA as well as a law degree. And it really the reason was, is because I got done with undergraduate main focus was on electrical engineering. And I said, Hey, I like electrical engineering. But I don’t want to be an electrical engineer in the sense that I didn’t want to, you know, typical electrical engineer, they you’re on a, you’re a small cog in a big wheel, you’re working on a project for a long period of time. And you don’t really get to have any say in or in the project until the end of your career. And I’m like, I don’t want to do that. So. So with that I kind of had two paths I could take one was either entrepreneurship and business. And the other was, I also found intellectual property on the law side, to be interesting. So rather than pick one or the other, I just went straight down the middle did both got the MBA, got the law degree, started a business or did a start up while I was in law school and MBA school also worked as an attorney, and really been chasing both of those ever since and always pushing my career to where allows me to do both at the same time. So that’s, that’s about as quick as an introduction as I could reasonably do.
Damon Pistulka 02:16
Four degrees, there we go. I, you know, I had a friend of mine, when I went to school, it actually he got it, mechanical engineering degree, but then got his law degree and was in patent law after that. And he really, he really enjoyed it, because he thought that that having a bit of technical background, you can kind of understand these patents a bit better and do that kind of stuff.
Devin Miller 02:39
Yeah, and the interesting, so in order to even be a patent attorney, you have to have a technical undergraduate. So when you go into patent law, you get or take an extra bar exam. So typical attorney, you go to law school, you graduate, you take a state bar exam, and you go practice in that state with the patent or with patent law. In order to be a patent attorney, you have to take a seven second bar exam, which I hated worse than the actual box ever, it was less fun. And so in order to even qualify or to sit for that Patent Bar, you have to be you have to have a technical undergraduate, so engineering, Aniko, electrical, chemical computer, some maths, or physics and that you have to have. So anytime you meet a patent attorney, they’re always going to have a technical undergraduate because basically, the patent office is saying, you have to have that in order to understand the technology well enough to represent clients.
Damon Pistulka 03:34
That’s awesome. That’s awesome. I didn’t realize that. I say loaded. We’ve got anger here today. And she said good evening to Devon and I and then she also said four degrees. I know we got kasi here today. All right. Thanks Kasi. So four degrees? What in you said love startups? You started up somewhat while you’re in college yet? So what really draws you into startups?
Devin Miller 04:04
Yeah, I mean, and that’s even way why I have my own law firm now. So I worked for big law for a while or for a period of time for about six, six years work for big, big law firms, huge corporations. And really, I like startups. Because at the end of the day, you get to Captain your own ship. So you get to make the decisions. It’s up to you. You either sink or swim by your own skill sets. And you also get to make the decision. So you get to own up to them. I mean, now, that’s bad if you make bad decisions as it goes under, but at least you get to have that freedom and that ability to say, Hey, this is you know, for me it was as an example in the legal field was, I don’t know if I understand or agree with how everything is set up and done. Sometimes I think it should be done differently or done it with a different perspective. And so by MIT of a large law firm, you have a lot of partners, you have a lot of people that have say decision by committee, everything moves slow, and that just doesn’t fit with my personality. And so Whether it’s the legal side or whether it’s the other startups I’ve been a part of, I just like to be able to say, hey, I have a good idea. I want to be able to implement it. And I don’t want to have to go through a lot of chains of command and I have to go through decision by.
Damon Pistulka 05:13
Yeah. Yeah, that’s true. It is. Yeah, with your experience in the bigger firms and bigger corporations. That is a big deal. Compared to, like you said, a little piece, a little cog and a big wheel are prepared for you said, but it’s Yeah, so true. So true. That is one of them. Oh, we got Matt Guzzi here today. He said, he’s got three patents. But hackers should have them for the best team. Yeah, unfortunately, Matt, Massa, Wisconsin guy, if you can’t tell. And we’ll let’s just we’ll just excuse him for that.
Devin Miller 05:50
Hey, everybody’s got to have a team they root for?
Damon Pistulka 05:53
Yeah, yeah, they do. They do. That’s for sure. That’s for sure. So when we’re we’re talking a little bit more about this. I mean, you you, you’ve got some deep roots where you’re at? I think this is cool, too. So tell us a little bit about your the area where you’re at? And
Devin Miller 06:11
yeah, so I’ll claim the area where I’m at as a place I grew up. So technically, where I have our office right now is about one city over, it’s still really close. But where I grew up was an a smaller town. It was a farming community. It’s called Morgan Utah. Population, probably at least when I grew up is growing way too fast now, but when I grew up, it was two or 3000, somewhere around there. Now we whereby big cities, I’m not way out the movies, but you know, it’s a small farming community. But so my my family or has roots, honestly to the foundation or founding of that community. So you go back to about the 1850s. And you had some of my ancestors that founded the community started it and actually started as just a sawmill where they got it started, and they are and grew from there. And then it grew into a farming community. But I grew up really kind of doing I wasn’t, I wouldn’t say myself as a farmer, because farmers have to work a lot harder than I do. But I grew up on a on on a farm, where I was always helping my grandpa, whether it was haul hay herd, the cows, you know, move everything around shovel and all the waste products of the animals and everything else. So it gave me an appreciation both for people that work hard as well as to get a good work ethic. And so while I didn’t dare keep on with the farming tradition as much, it was one where it kind of cemented it where you know, I had generations of farmers that worked hard and learn those lessons that got passed down to me. And it’s one way or now I try and even though I don’t do as much farming, I try and pass that down to my kids as well and have that same year. Give them some of those same opportunities.
Damon Pistulka 07:47
Yeah, we were talking about that. So so you’ve got four kids, you said their ages seven to 12. And you are and we’re gonna get into Miller IP law and talking about that. But talk talk about this. You’re launching a food truck with your kids.
Devin Miller 08:01
I am so and that’s whatever was like attorney do in the future. How does that adds nothing to do with the legal although I did file a trademark for the name of the business. So technically, I did tie it back into intellectual property. But no I so I have four kids, as you mentioned, oldest is my son who’s 12 youngest is my daughter who is seven. And for her three daughters one son. And you know I was always looking at so I wish I’d had more entrepreneurial opportunities as growing up now worked on a farm right on experience. But I never really had an ability to start my own business or to be involved with it to a young age until really I got off to college and even graduate school. And I wanted my kids to have an opportunity to do that. Now. They’re not going to be an attorney. And while they do help me out with some projects here in the office and help to be some of the cleaning crew in that they really haven’t had an opportunity to do anything entrepreneurial. So I was kind of always figuring out, what could that be. And I landed on of all things a food truck and I thought, hey, that’d be fun, they would get to interact with people. So they get to learn how to communicate how to talk, get to work hard, figure out new ideas, and everything else. And so I started a food trucks called the bear den. And it is one where man it takes it’s taken way longer than I anticipated with all of the government bureaucracy slows down everything. But we’re getting ready to launch it here probably in the next three to four weeks. And so our idea is basically during the winter, we’re going to do build your own hot chocolate. So you get to choose a flavor you get to choose the toppings you get to choose everything and it’s kind of a build your own hot chocolate bar. And then in the summer we’re going to flip that and we’re doing build your own popcorn. So they get a popcorn in the summer, hot chocolate in the winter and then there’ll be a few things and so then I’ve you know my kids have been there all along the way. We started out converting an old Airstream 70 or 1972 Airstream over into a food truck. So we did that we actually customize it. cutouts are part of the wall so that people can come up to it. They got to help out that they’re gonna help out the decorations they get to help out with hanging the shelves. and everything else. So it’s been a fun opportunity. I don’t know if we’ll make exorbitant amounts of money, but I think it’ll be a fun opportunity for one them to work with that and to for them to get that kind of entrepreneurial experience at a younger age.
Damon Pistulka 10:13
Yeah, I think that is really cool. And really cool. Something you can do with your kids. It’s gonna be, it’s gonna be fun no matter what. And it has been it sounds like so
Devin Miller 10:22
already been a fun experience. So yeah, way more to come. Yeah,
Damon Pistulka 10:26
yeah. Well, now Now let’s let’s, let’s move forward from that fun stuff to the fun stuff about Miller IP law and IP law in general. So what I mean, I looking at your website, the one thing I was I was noticing about your website, and I really appreciate is you really taking a I don’t know if it’s, it’s definitely different from big law firms, like their approach, because you have a DIY option, you have a consulting, you know, a consultative kind of approach option where I can talk to you for a while, let’s figure out some things. Or you can you can go, Hey, here’s a one time fee kind of option for you to do a trademark or whatever it is the IP. What, what really inspired you to go that way, and give people these options like this?
Devin Miller 11:23
Yeah. So as I mentioned, just as a quick rewind, and I’ll get to your question. So I work for large law firms and law top 100 firms, I worked for clients, Intel and Red Hat and Amazon, Ford, and others, and large law firms have their way of doing it. And I basically got to a point in my career said, I want to focus on startups and small businesses, because they’re oftentimes kind of more overlooked in the marketplace. Law firms, generally, while they may, sometimes service aren’t really set up for him. And so part of that approach was, if I’m going to focus on startups and small businesses, I’m going to look and see what are some of their pain points or areas that I can improve and areas that can be different. So when I set it up, you know, I set up the really when in the in has gone through a few iterations. But I set up the Law firm website to almost have a kind of an E commerce type of a field, which is different than most law firms. Generally, when you go to law firm is going to have a pretty picture, going to tell you the name of the thing you can go and you can find out all about the attorneys and what services they offer. And that’s about it. And I said, you know, people are generally especially if you’re you know, less familiar with the legal industry, you’re looking for, how much is this going to cost? How long is it going to take? What are my options? Can I talk with someone right now is it going to cost me something to even ask a few questions is even figure out if I need to do all in on to do anything. And so that’s kind of the the problems that I went to went about solving. So on the website, we have all of our flat fees, we do most everything, not quite everything, sometimes you get into litigation or need some hourly work, we’ll do it on an hourly basis. But by and large, everything’s on flat fees, we put that on the website, now you can go to a website, you can actually know before even talking to attorney, how much they’re going to charge how long it’s gonna take. I you know, I don’t ever claim to be something that nobody else has done out there. Because it’s a big world, a lot of people, but the general law firm doesn’t have that. You know, and the other thing that you know, is always interesting is, you know, generally when you reach out to a law firm, you get a front desk, you have to go through in the SEC or a secretary and then they have to talk with your transfer and see if you can schedule usually takes like a week to get on their schedule, and you have to go in their office and everything else. And you know, most of the time you’re wanting to talk with someone when you want to talk with them. And so I also set up the website that you can schedule, I mean, you can schedule if you were to go on my are on the website right now. And you’re gonna go to talk with devin.com, which is just links to my calendar, you can schedule on my calendar for 15 minutes after the podcast ended, because as long as it’s available on my calendar, I have other meetings, it will block it out. And I said hey, why don’t we have availability so people can actually connect with you and contact you. Same day, they can schedule something they can do remotely they don’t even have to come the office and they can just get a few questions answered. And go out route and the last one and then I’ll take a pause because I’ve already gone or hit on a whole bunch of things. The DIY stuff and the DIY stuff was kind of again out of that working with startups and small businesses and why we try and offer you know competitive prices and a good process even some startups and small businesses still can’t afford an attorney even at our rates and so we said hey you know, they’re typically there’s just really a couple options. One you can either just try and do it all yourself learn to illegals being in most of the time that aired that doesn’t end up well and it usually causes more problems and their solutions you can go to a you know a site like Legal Zoom or Rocket Lawyer and they are better than not are better than doing it yourself but not by a whole lot. I mean, most of the time you go through them it’s hard to understand you don’t know really what’s going on you can’t you know to talk with an attorney as a as an issue and everything else. And so I said hey, if we’re gonna service startups and small business says why don’t we add our offers some DIY tools, where we can have any videos integrated, we can walk them through it, they have an option to connect with an attorney for an hour, just ask questions and all those things and really try to build it. So it’s a alternative option to an attorney if they can’t afford our fees. Now, attorney, I don’t claim it to be a replacement for an attorney. I you know, attorney, it’s not going to be a entire replacement, but it offers them a better alternative option if they can afford our fees.
Damon Pistulka 15:30
Well, I think this is this is really cool. As I was looking at, it’s very cool what you’ve done, because you’ve followed some of the some of the things that that I read and learn have learned from other pretty prominent marketers, right? Because getting your pricing on your website is the one of the biggest things I think that professionals can do, just because it allows people to self select right. So hey, that sounds reasonable money to me, let’s talk. It doesn’t sound reasonable to me. Well, I can look at your DIY option and go, Hey, that’s where I’m at right there. Boom, hit it go. And, and you you give people alternatives, because and many businesses and I think the legal the legal industry is one of them, is we’re trying to serve as customers that are Damien’s age. But most of our business is coming from people. That’s Devon’s age. And we really need to understand that and start start to cater to that and get more of a self serve self select option. And I just think it’s cool, what you’ve done there. Just think is cool.
Devin Miller 16:43
No, and I agree with you. And I said, it’s interesting, because I think that, you know, the legal, legal industry, like some other is so slow, moving, slow, slow to adapt everything, they really just stuck in their ways. And really, you know, its irony is, is you could go back 200 years, and other than the advent of the computer, internet and email the owner in about the same way. And so it just seems like, you know, you can either stay how it’s been done for 20 years, or you can adapt and make it better and improve it. But it’s going to take some work. And most of the time attorneys just don’t want to put in the work. But I love it and it makes it makes it fun for me.
Damon Pistulka 17:18
Yeah. And you said to you, and after thinking and scrolling through website, you built it with an E commerce type feeling you’re right, it does it has the drop down menus the way it you know, you can select like you’re selecting an item. It’s cool. It’s cool. I really thought that’s worth it for us to talk about a little bit because people will see that in your website. And you’re helping people in all 50 states to correct
Devin Miller 17:40
Yeah, so nice thing about intellectual property, it’s on the federal level. So I have more clients outside of Utah, I think now than inside of Utah, and we have them and almost, if not every all 50 states close to it. And it makes it nice. But what we also had to do is we were doing zoom in virtual meetings and calendar schedules all before COVID Hit me for that was cool. Yeah. Because again, I’m trying to be where the startups and the small businesses are at. And all they say is you can come to my nicely adorned huge high rise office with my wood, you know, with paneling, then I’m only getting a very small subsection of the clients. I really could be. So that’s kind of across the board. We’re trying to set it up to be different.
Damon Pistulka 18:20
Yeah, yeah. Very cool. Very cool. And yeah, that’s very cool. So as as you’re looking at it. So if we got some people that are that are doing their startup here, what are some of the first things that you you see commonly that this startup should be thinking about slash protecting when you are talking about IP law?
Devin Miller 18:45
Yeah, and I think there’s a good level set, because I mean, sometimes people don’t even know what a trademark versus a patent is. And they’ll come in and say, Hey, I need a, I need to protect my invention with the trademark. And I said, Well, I’d love to predict your invention that falls under patent. So as a quick level said, just for the audience, you know, give them an overview as to what intellectual property is. So when you hear the term intellectual property, it’s really an umbrella term includes a few different things underneath it, that encapsulates all those industries referred to as intellectual property. And generally it refers to patents, trademarks, copyrights. So if you were to break that down, patents are going to go towards inventions, something that has an functionality, something that does something, trademarks are going to go towards branding, so name of a company name of a product, a catchphrase a logo, all those things are under branding and fall under trademarks. And copyrights are going to be for creatives. And so that can be a picture a sculpture or a painting, a photograph, a book a video, all of those things tend to fall under copyrights. And so probably the first thing that they should, you know, realize there’s a difference between each one of those and where their business is and realize, you know, it’s not only Hey, do we have a brand but it’s a brand part of our business. In other words, you know, sometimes when people will come in say I need it everything and I says, Okay, well, we can do everything, but it’s gonna be a probably a bigger budget than you want, but let’s whittle it down to what is your, what’s the value of your business? Is it? Do you guys have a really cool product that’s unique and innovative on the marketplace, and that’s what drives your value, then go for more of a pattern. If you’re a service based business, and really, it’s all about branding, and you can, you know, have a better reputation and get better reviews and everybody else and then you’re going to look for trademarks. And so that’s kind of where you start to break it down.
Damon Pistulka 20:27
Okay, good. Good. And and on the patents, there are different kinds of patents, right? Because I’ve heard of a process patent before or I forget a product or design patent. So what what are the can you explain that a little bit, so we all have a better understanding?
Devin Miller 20:46
Yeah, so the vast majority of the time when you hear someone say a patent, they’re usually referring to what’s called a utility patent. So utility patent is it can be a process patent, it can, you know, they can really uncover a lot of ground, it can be mechanical, electrical, software, pharmaceuticals, food, you know, everything in between, but it’s really break it down utility patents, or anything that does a functionality you’re wanting to cover, get coverage for that invention for how it works, how it functions. Now, to your point, there is also what’s called a design patent. And a design patent is going to be something that is non functional, it’s but it has a unique aesthetic nature that is different than what’s out there. So give you an example of a design patent, you know, you have iPhone out there and you think, Oh, well, iPhone has a whole bunch of utility pens, which they do on the antenna and on the battery and on the storage, but one of their design patterns, although their design has since changed, but for a long time was how the phone actually looks, the curved edges, the circular button in the middle and all those things, it was a unique design. And it was not a functional meaning you can put the button anywhere but how it looks really was protecting that year that design and so you can do a design pattern, if it’s more on the aesthetic font or aesthetic nature of the product and kind of the look and feel to it. And then if it’s anything to do with functionality falls under utility pattern.
Damon Pistulka 22:05
That’s awesome. That’s awesome. Now when you talk about trademarks so so patents first of all the utility that’s more that’s going to do something functional and do it the design is more for an aesthetic thing that that is part of your brand or critical to your brand. So trademarks, the same thing there’s different trademarks, what’s this little you see the R in there and some don’t have it and you know it? What’s that whole thing about trademarks?
Devin Miller 22:35
Yeah, and all this build or dispel the myths myth first just because it doesn’t have an R or TM doesn’t mean it’s not trademark it just means that they didn’t put that as part of it and so yeah, there isn’t now there’s benefits to putting it there but there is no legal requirement that you have to in order to have a trademark put in our TM by whatever you have registered or trademark and so sometimes people say well they don’t have the are the TM so that’s not trademark right? Well that’s not necessarily true, they can still have it and the reason why you put that is it gives people a legal notice that hey, I believe this is a trade markable term I believe that I have rights here and if you violate them I can get increased damages so a lot of times people put it there because they want to get increased damages if they ever have to go through for infringement but you don’t have to have it now with that said you know there’s a typically three of them two of them are trademarks but three that kind of get confused so you have the TM you have the R word the circle and then you have to see what the circle so the TM is basically Hey, I don’t have a registered trademark meaning I haven’t gone through the federal registration process but I think I have a brand and I have what are called some common law rights or state law right so I have you have some very limited rights by the end by being the first user of a brand you do have some very limited common law rights that are associated just by the use of it so that’s kind of what a TM means it’s Yeah, I don’t I haven’t I haven’t gone after an actual federal registration but I think I still have some trademark rights here and so I’m putting you on notice the are with the circle is going to be for a registered trademark that means I have gone through the trademark process with the federal government it’s been examined and it’s now a registered trademark now some people put the are by mistake and they don’t actually have a registered trademark but if you’re doing it right, you should be ours a registered trademark and then sometimes people also put a C and C is different C is for copyrights you know the C with a little circle that’s for copyrights and so sometimes people will intermix them or get them confused but if your to do TM and say I think I have a trademark but I haven’t registered it ours for registered trademark see is F is for copyright
Damon Pistulka 24:40
awesome awesome great. I’m so glad I asked that because I know a lot of people you see these all over and I I didn’t honestly have a clear understanding of all this so that’s great. That’s great. So what are some other things that we should I kind of down that road if this is so cool learned as part of it. So when you talk about let’s just talk about a patent. I mean, timing wise, how long does it take to get a design patent? If you’re if you’re ready to go, I mean, you gotta have a lot of stuff I know ready to go to do it. But see, I’ve got everything ready to go. How long would it take to get it registered?
Devin Miller 25:17
Yeah. So let’s say you had the all the designs in place. And so and that can some people get mistaken. You don’t have to be the world’s best artistic artists and have it perfectly shown, as long as you can have a reasonable representation. Us and most law firms, they’ll have a draftsman that will formalize and make it better. So as long as you can adequately get whether it’s hand sketches, drawings, notepad, PowerPoint, whatever, just be able to convey it, then you’re you can at least have the minimum threshold. And really, when you’re looking at whether it’s a design patent, or a utility patent is going to be the same standard for whether or not you’re ready to get going, which is what they call in legal terms, conceptual reduction, the practice. Now what does that mean in in normal terms, that basically means you’re able to convey the invention in a to a level that somebody in the industry, given enough time, money and effort could go and replicate it. So if it’s a design, you can say, Okay, I’ve got the design narrowed down enough that I can actually show what it is show what the design is for the design patterns. If it’s for a utility patent, hey, I’ve got enough of the details that I could go out and explain it to an engineer as an example. And they’ll say, okay, yeah, I get enough time and money and effort, I could go out and make that and so with that, if you kind of hit that first initial threshold of I can explain it to that level, then you could you could potentially get started doesn’t always mean you should get started, but you could get started. Now, if you’re to look at kind of timing, once you file a patent application, I’ll just I’ll hit on both utility and design just to round out the conversation. You know, design patent, generally, once you file it, it’s going to go through an examination process, because examiner and both for utility and design are going to look and see whether or not it’s patentable. So design patent, when to file it to get to the top of the queue to start with, you know, get start the examination, you’re usually nine to 12 months after the time you file it. To get all the way through the process, you know, we’ll go back and forth, the examiner define what’s unique what’s patentable, what’s different on a design patent, you’re typically 12 to 16 months, somewhere in there. Now, for a utility patent, it’s always a bit longer. So to get started with the examination for utility patent, about 12 to 18 months before you get to the top of the queue for examination. Now there are ways if you really want to get started earlier government will or let you get to the more towards the front of the line, if you want to pay some expedited fees, to have a quicker examination, but I’m just giving you the average or the normal normal path, utility pattern 12 to 18 months to start the examination, you’re probably seen another six to nine months to get all the way through. So usually you’re looking at 1824 months to get through the whole process on average. Now, I’ve gotten the averages, I’ve had clients who’ve gone through quicker, clients have gone through slower, but that kind of gives you an idea or a frame of mind as far as how long it typically takes.
Damon Pistulka 28:09
Very good. Awesome. Thank you so much for sharing that. Because I think you know, these are things that walking off the street people don’t know, you know, you just don’t understand it. And you’re in it every day. So now, I’ve been involved before where you people have talked about this before. I’ve got an idea. I’ve been working on it a while I’ve sketched it up, I’ve done this, I may have built a prototype, but I never filed a patent. And someone else comes out and files a patent. But my stuff was done 10 years ago and I forget what they call it. But it’s it’s something about when I’m when I’m developing something and I might have it, you know, the idea the concept. How do we really tell in this process? If you if you had filed a patent on something first? Is there a way if I if I was like, hey, this patent that but I’ve been working on it for five years? Are you just kind of out of luck because somebody else did it first?
Devin Miller 29:13
Pretty much yes. It’s okay. I don’t know. I didn’t know all illuminate or illusory illuminate on because there’s myths that come along with that. So yeah, going back just as a little bit of a recipe or reciting history tooth out before 2013 There was a bit of a different answer. So okay, prior to 2030 and that’s why you’ll see Miss going in everything on our bulletin boards and chats and everything. People give all sorts of Miss and you get a lot of wrong information. But pre 2013 The US was one of the few countries that was a first to invent country, meaning to get a patent you had to be the first to invent. After 2013 They switched over and join basically the rest of the world or most of the rest of the world in being a first to file system So, pre 2013 first to invent post 2013 first to file. And so that’s where a lot of the myths come because Yep, before 2013, if you invented it first and you could legitimately prove it, you would be able to go out and you could pre date it, you could pile it and be able to kind of reach back to when you started to work on it. Yeah. And that’s where some of the myths you’ll hear kind of like a poor man’s patent, where all I got to do is write down my invention, sketch it all out, put it in a self addressed envelope and never open it and make sure it’s postmarked. And it will be fine. That was more true. It wasn’t very true, but it was more true post or pre 2013. Now after 2013 is known about, it’s worth about as much as the stamp on the envelope. So yeah,
Damon Pistulka 30:44
okay, good. So that’s, that’s first.
Devin Miller 30:47
It is, you know, so you, it’s really set up to be a first to file system now. So whoever is, unless you can prove like they stole your idea, they got access. And, you know, they broke into your lab, and they took all your designs, and you can go prove it in court, then you have that rare exception. But for 99% of people, it’s whoever files on the invention first is going to be the one that is the presumed inventor.
Damon Pistulka 31:12
That’s awesome. That’s awesome to explain that because I know so, you know, what you’re really saying now is if you got something you think you should be patented, you should probably get to patenting. Yeah, or talking about it.
Devin Miller 31:27
No, and I’ll caveat, one other thing that people oftentimes aren’t aware of that it’s a lot of times it becomes a catch for a lot of businesses, is you only once you put something out in the public. So you put it on a website, you do a trade show, you pitch it to investors, you offer it for sale, any of those things, you start a time clock ticking where you have one year from the earliest time you put it out in the public, within which you can file a patent. If you miss that window, you did now just donated your air, your invention to the public, meaning anybody can do it and you’re no longer able to patent on it. So the worst case scenario is I’ll have clients that come into my office and say, Hey, I started this business about three years ago, you know, we started out we are bootstrapping, and we didn’t have time to do IP. We’ve been selling for a couple of years. And we’re finally like to get around to doing a patent. And I know then I get the lesson fun conversation saying Yes, awesome. Your business is doing well. I’m glad it’s being profitable. Unfortunately, we’re not able to help you with the patent because you missed that one year window.
Damon Pistulka 32:28
awesome piece of information right there. So if you got something that you think you shouldn’t be patented, you need to get a patent within one year, or you just donated it to the public domain. Yep, exactly. Boom, drop that one. There’s a mic drop right there, man. Wow. So he just I mean, this is so good. I mean, we talked about the timeline of patents, we talked about the whole, you know, prior art or whatever the heck they used to call it, you know, before 2013, it was the first to invent, but now it’s first to file and then you drop the other bomb right on there. As you got a time clock you got one year if you’re if you put it out in the public to to get it done, or else it’s public. Public information. So Wow. Then another thing I’ve heard of before too, and I’m just I’m just I’m so many good questions are coming to mind now, dude. So what’s a provisional patent, we used to talk about provisional patents and people talked about what’s that really, dude? Is it anything anymore?
Devin Miller 33:25
Yeah, no provisional patents are still alive and well, and it’s still a great option. So provisional patent is a type of utility patent application. So when you get into a utility patent, you have two different types of patents you can go for one is called a provisional patent application. The other one is called a non provisional patent application. So a provisional patent application is a less expensive one year placeholder application, it gets you patent pending, get your date of invention, and gives you a year to decide whether or not you want to pursue a full patent application or not. When you get towards the end of the year, either decide, yep, I want to now pursue a full patent application, which is called a non provisional, or at the end of the year, you say, hey, business didn’t work out. And we’ll do as well in the marketplace, we don’t have the money. And if you don’t, you know, if you don’t pursue it any further, it’s basically disappears as if you never filed it. So provisional patent applications are usually are a good option. A lot of times for really two scenarios. One is if you have a limited budget. So if you’re saying hey, I don’t have the budget to afford a full patent application right now, but I want to protect what I’m doing as we continue to invest in develop it. provisional patent applications that get one on the budgetary. The other one, a lot of times that fits in is hey, we’re pretty early on in our invention or a product. And we’d like you know, we still have a lot of r&d research and development, figuring things out. But we’re on to something and we want to make sure what we’ve done right up until now is still protected, why we take the next year and we continue to develop and iterate and finalize a product and so that’s where a lot of times provisional patent applications come in. It gives you that one year placeholder to be able to either save up the budget and or to further develop nonprovisional is just your full patent application. That is now the typical one goes to the examination process can issue as a full patent. But that’s kind of where the provisional comes in.
Damon Pistulka 35:18
So cool. Thanks. This is just awesome. It’s awesome. This clearing up some of the questions just really given us a great education on on IP law and patents. Now, let’s go into trademarks a little bit because I want to understand the trademarks you got you said the TM No, no registration, common law rights in the the AR It’s been examined and registered. So what’s it what’s it take to get a trademark timing? I mean, how long is it to do it and what what should we be trademarking?
Devin Miller 35:54
Yeah, so, a few good questions I’ll ask you, or answer the easier one first, which is timing. So typically, to get through the trademark process, I always give kind of if everything goes perfectly, how long it takes, and if you know, if you if you have to go back and forth and argue with the trademark office, but it takes, if you go straight through, you’re probably seven to eight months from the time you file the trademark application, assuming it goes pretty smoothly, and you don’t really have any issues to address. If you have if you get some rejections or you have to do some clarifications, go back and forth with the trademark office, you’re usually more like 10 to 12 months, somewhere in that timeframe. So generally low end, seven months, high end, 12 months, and I’ve had some that have gone two years and some that have taken four or five months. And so there’s always exceptions, but that’s kind of a general thing. Now, the one other thing to think about is you know, what can you trademark well, you can trademark a lot with brands and so you can do the name of a company name of a product catchphrase logo. You can do some of the weird ones you can do smells so the smell of playdough that’s technically trademark. Wow, do there’s a smell of money that they used to pump into casinos that’s typically are technically trademark. You can also do sounds like if you’re to do the old AOL, you got mail, you know that old that would did that one was a trademark one because everybody knew was associated with AOL. So generally, it’s going to be most of the three, you know, name a company product, catchphrase logo. But if there’s something unique to your brand, that you know, there are ability, the other our abilities to protect it or in a broader scope. The other one that’s always fun, and I can’t remember the football team, and I’m sure somebody will or know or remember, but they have a red field where the action they paint the fence or their field red instead of the typical green. And they actually have a trademark for the Redfield that they’re the only ones that can do it. And so those are some of the fun ones. Yeah, you can do it. Now, the second thing to just to consider is when you’re looking at trademarks, what can you get a trademark on. So those are kind of the types of trademarks things you can go after. What is trade markable it really boils down to the nice thing is as with trademark, the standard for whether or not you infringe someone else’s trademark is the same standard for whether or not you can get a trademark, which is generally the main the main standard is what’s called confusingly similar, confusingly similar basically means with if somebody are looking at your brand that you’re going after, and another brand that’s already out there, what they think is associated, tied together same business related, or they’d be able to tell them apart. If they think it’s going to be confusingly similar, they think there’s going to be the same business, then you’re not able to get a trademark, if they can reasonably tell them apart, then you can get a trademark on it. So as an example, if you wanted to go start a apparel and shoe company and you this spelling of your company was ni Ke, you probably got a problem with Nike because your two are confusingly similar. Now if you’re the first person to come up with Adidas, different than Nike, you’re both in the same products, but you have two different brands. And so that’s the one thing to consider. Other one, just to consider on trademarks is the other thing that you cannot trademark is what’s called or merely descriptive. merely descriptive basically means you can’t just simply go get a trademark for a common term that everybody uses to describe the product or service. I’ll give you a simple example. You wanted to go open up a fruit stand, and he wanted to sell the world’s best fruits. He wanted to sell apples. Well, let’s say you named your fruit stand Apple, you can’t get a trademark on it. Because everybody refers to the fruit Apple as an apple. Vice versa. If you wanted to go start a smartphone company wanted to do consumer goods, you can name an Apple because it doesn’t you know, it’s not a common term that people use to describe a smartphone. Now maybe everybody calls them Apple now, but you get the idea. And so yeah, those are kind of your two standards confusingly similar. merely descriptive. Generally, if you meet those standards, most of the time you’re able to get a trademark.
Damon Pistulka 39:41
Yeah, yeah. Yeah, this is awesome. This is awesome, dude. This is just like a treasure trove of information. And I want to I want to stop here and just tell the people that are listening. Now if you just got on, go back to the beginning because you have really laid it out so much great information about patents and now trademarks. And wow, this just good stuff. Good stuff. So, and and we’re getting we’re getting close to time here. So I’m going to I’m going to be cognizant of your time and do this. I’m going to ask a couple more questions. So what are some of the things that you see regret from startup? When they when they do it and and we talked about the one year it’s in the public domain with with patents and I’m assuming that’s a probably a kind of a common one. But what are some other ones where you see people go, Oh, man, I shoulda woulda coulda done differently.
Devin Miller 40:40
Yeah, I think that are probably goes right, probably right along with that. But on the trademark side, which is sometimes people will go out, they will put a ton of time, money and effort and then brand, they’ll never trade market. And then they’ll see a competitor that comes along and starting to get close to them and that and they say, oh, I should probably go trademark that come to find out the competitors already filed a trademark on it. And now they’re at a much more disadvantage. Now there are some paths that you can still carve it out. But generally, the way that works is whoever files the trademark first is in a much better position. Now, I’ll walk you through just a simple example. You do have some rights. So post a patent, basically, you miss a date, unless they stole the invention from you. And you can prove it. Yeah, you’re just kind of out of luck. Trademarks, you do have when I said some common law rights. Give me an example. Let’s say you went out and started ABC pizza, and you’re going to do deep dish pizza in Chicago. So you started your business, you’re doing awesome. And now you’re looking to franchise. So you started let’s say five years ago. And somebody came along during that five years and said, Hey, I’d really liked the brand ABC pizza. So they went off to Los Angeles and started their own ABC pizza, they were smart enough to file a trademark on it. And so now they are they’ve gone through got the trademark, or they’re going through the process. And you say, Hey, wait, they just took my brand, I want to stop them, well, you’re to a large degree out of luck, the way that that basically works is you can continue to use the trademark in Chicago, where you’re at, for the current geographic location where you’ve been already selling your products prior to them filing a trademark, but you can never expand out of that. So you could not. So they the people that this filed the trademark in Los Angeles, they basically own every all the geographic areas outside of where you were at when they filed the trademark, and you own it inside. So you could keep selling in Chicago couldn’t go anywhere else they can sell everywhere across the US except for Chicago. So that’s kind of one of the other things to be aware of, is if somebody else comes along and filed a trademark before you it can significantly hamper your ability to expand or to franchise or to grow.
Damon Pistulka 42:45
Huge, right? They’re huge right there. Because if you Yeah, you spend all that time and effort in building a brand, and then find out that someone on the other side of the country already has the brand. Has it registered already. And they just stopped you from expanding? Yeah, big deal. Ah, wow. Great stuff. Holy heck, so much, so much to learn about this. So I’m just floored by some of that. For why just because you think about startups, you got all this other stuff to think about, and then you and then something like this can come back and really bite you. So I’m gonna go back through my notes because we man, we’ve covered so much good stuff. Well, I got I got a couple things. And we’re not gonna we’re not gonna go on this long, because everybody’s talking about AI and in, in the legal profession and lawyers. So what’s what’s your take on how it’s going to help you be a better lawyer?
Devin Miller 43:49
Yeah, and I think some of the concern with lawyers is whether or not it’s going to put him out of business. Right. So everybody’s worried Are there areas of the law that people are just saying AI is going to take over? Now? I don’t think it’s that smart yet. I don’t think it’s gotten to the point that it’s going to be able to infuse that level of experience, with one exception, which is you have some areas of law, which attorneys have gotten used to just being a template boilerplate, I fill in the blanks, and it takes me five minutes. I charged him five hours of time. Yeah. So I think that’s the area where AI probably is going to step in first. And that kind of or sometimes has to do with simple Wills and Trusts, simple business formation, simple agreements, not complex ones, but simple ones, where people have relied on templates for a long period of time and the attorney just happened to know where to stick in the information. For the vast majority of the legal or legal arena. I don’t think the AI is there yet. Maybe I’ll get there someday we’ll get smart enough and it will it will replace all the attorneys and then everybody will be happy because they don’t have to deal with attorneys anymore. But until then, I think that the the main thing is it tends to be I’ve seen a lot of applications in it being tools for an attorney, so to reduce their time to cut down I need a need, or I’m going to be working on this type of matter. And it typically takes me you know, to draft it from scratch, or five hours. And I’m just making this scenario up. Now I go out and I have some of the AI assisted tools, and it cuts off an hour or two, well, it’s a benefit to the attorney because now it’s taking them less time, they can either try and pocket the profit, or if they want to be competitive, they can reduce their rates, or reduce the amount of time it takes them. And that’s where I see a lot of it is AI tends to be a lot of good tools that are people coming up with implementing it that helps an assist attorneys but hasn’t gotten to the point where it probably replaces them.
Damon Pistulka 45:36
Yeah, yeah. Good stuff. Because I agree, I think that and I think also that if you’re embracing it to make you better at what you do, and you continue to to stay at stay current with that, it’ll help but you said earlier, too, that the legal profession is a little bit slow to move. And that’s probably a lot more of the fear than anything.
Devin Miller 45:58
No, I think so I think you know, you can either incorporate it into how you do things, incorporate it into your practice and leverage it. Or you can just try and hold out as long as possible. And that’s kind of the path that you can either go the Apple iTunes, hey, we’re gonna change the industry. Or we can be the old you know, the Compaq CDs, which nobody ever uses. But we tried to hold on as long as possible. It’s coming either way. And so I always like to say how can we adapt or use it to improve it, make it better and stay ahead of the competition? Because the I think the legal industry as the people that stay behind and lag behind are going to be the ones that are going to be a lipst are going to be left behind?
Damon Pistulka 46:36
Yeah, yeah. Awesome. Well, Devin, I want to thank you so much for being here. And I just Angela just dropped a set a low dropped in Angela, thanks for being here today. But, Devin, thanks so much, man. We’re, we’re, we’re past our time already. And I wish we weren’t but gotta let you go, man, and let you get on with your evening. But Devin, where can people get a hold up? Give us your website, and where people can get a hold of you?
Devin Miller 47:05
Absolutely. So I’ll give them three ways to get a hold of me depending on what their what they want to get a hold of, and how they want to get a hold of me. So I’ll start with social media. You know, I know we have the law firm has presence and all the major social media platforms, a place that I am personally, the most active is on LinkedIn. I just tend to like the business or type of approach to it. And so LinkedIn, if you want to connect up with me there the easiest ways if you just go to meet miller.com, that links right to my profile makes it an easy way for you to connect up with me. So meet Miller. Second ways, if you’re saying, Hey, I’d like I’ve got a few questions about IP patents, trademarks or whatever. Like do we offer free 15 minute consultations where you can chat chat through it, you can get some questions answered, it’s not going to answer every possible question you have within 15 minutes, but it gets you started. To schedule some time for a free strategy meeting, you just go to strategy meeting.com. And then you grab that link to my calendar and grab some time to chat. The last ways if you just want to go and check out the website, see how we set it up, see our flat fees, check out our DIY tools, check out our all the information there. We have a lot of great resources, you can just go to law with miller.com and they can connect there So as a quick review, connect with me on LinkedIn it’s meet miller.com strategy meeting is at strategy meeting.com And or for just the general law firm webpage. It’s at law with miller.com
Damon Pistulka 48:27
Awesome, dude. Awesome. Well, Devin, thanks so much for being here today. Man, I just this is a great conversation. And I hope the listeners got half as much out of it as I did, because I know it’s it’s, it’s on overload. I get three or four pages of notes here. Just thanks for being here. So appreciate it.
Devin Miller 48:47
I love being here as a fun conversation and hopefully people got a few new ideas out of or learned a little bit about the legal atmosphere are out of it. So thank you for having me on.
Damon Pistulka 48:57
You bet. Well, we’re gonna shut her down for now. I just want to thank everyone that has listened to us today and the people that commented You know, Inger and Angela and we had Near Earth Object and someone that I couldn’t tell who it was Matt. Just the Packers might be good this year. We just don’t know. Kasi. And thanks for being here today. Matt, just hang out for a moment. We’ll be back again next week with the faces of business