Your tenant stops paying or refuses to comply with a term of the lease it executed and you want nothing more than to get them out of the property – quickly. You do not want to go through the eviction process in the court. You believe it will take too long, be too expensive, and is just not worth the trouble. You have heard about other landlords changing locks and exercising their right of self-help. Should you follow in their footsteps? Before you decide to change the locks, here are some reasons why you might want to reconsider.
First, what is self-help? Self-help is when a landlord, without bringing a lawsuit, takes action to repossess the property leased by the tenant. A common example is when a landlord changes the locks when the property is unoccupied. A landlord has the right to self-help if ALL of the following apply: (1) it is a commercial lease (i.e. lease for business purposes); (2) the tenant remains in the property after the term of the lease expires (what is known as a holdover tenant) or the tenant materially violates a term of the lease; (3) the landlord gives all required notices under the lease (such as a termination notice or right to cure notice); (4) the lease specifically allows the landlord to use self-help measures; and (5) the self-help is conducted without a breach of the peace. If any of these conditions is not met, then self-help is not an option.
Following those rules seems easy, right? Here are the risks.
If any one of the conditions above is not met (and sometimes even if they are), then you are likely to be the subject of a lawsuit by the tenant. There are several claims that typically arise out of a landlord attempting to repossess through self-help measures. A tenant could assert wrongful termination of the lease and wrongful eviction, conversion of property (withholding of property from the person entitled to possession), and trespass. The tenant can seek damages arising out of these claims, including actual damages (the amount of money lost as a result of the landlord’s actions) and lost profits arising out of the tenant’s inability to run its business. A tenant can also seek punitive damages (which are intended to punish and deter the landlord from doing the same thing again) and attorneys fees. There is no way to guess at the specific amount of punitive damages that may be awarded to the tenant.
Even if you are successful in fighting off these claims, you will have lost time and money. You will spend a significant amount of time defending the lawsuit and you will likely incur significant legal expenses in defending such an action if you choose to hire an attorney.
While it may take a bit longer than changing the locks and while it may have an upfront cost, following the statutory process for eviction can give the landlord peace of mind. Court backed and aided by the sheriff or other law enforcement officer, the eviction process is the safest option.
Cruising Facebook the other day, maxing out my productivity, I came across a friend’s post sharing another post about unmarked vehicles. I get a little tired of seeing these “everyone should repost this” type of posts all the time, but this one got my attention because it has to do with getting pulled over (criminal stuff usually gets my attention). The post was a story about a woman approached by an unmarked police car with a light on the roof while she was driving. Instead of pulling over, she called 112 on her cell phone reached police dispatch and said she wasn’t going to pull over on the side of the road. Long story short, the dispatcher . . . dispatched . . . law enforcement and they arrested the guy in the unmarked, fake, cruiser who, of course, turned out to be a criminal. I don’t know whether dialing 112 on your cell phone will direct you to law enforcement but you can easily get in touch with them if you need to by dialing 911 or the non-emergency number in your area.
The question I had is whether and when law enforcement is permitted to use unmarked vehicles to initiate traffic stops. The Ohio Revised Code has an answer:
Any motor vehicle used by a member of the state highway patrol or by any other peace officer, while said officer is on duty for the exclusive or main purpose of enforcing the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, shall be marked in some distinctive manner or color and shall be equipped with, but need not necessarily have in operation at all times, at least one flashing, oscillating, or rotating colored light mounted outside on top of the vehicle. The superintendent of the state highway patrol shall specify what constitutes such a distinctive marking or color for the state highway patrol.
So, what does it mean to require clearly marked cars and to limit the law to officers on duty for the main purpose of enforcing traffic? The markings of a police car must reasonably distinguish it from other vehicles on the highways and roads. This does not mean Ohio prohibits unmarked police cars. Just that cars must be marked in certain circumstances. In the Cleveland area, officers in an unmarked car lawfully stopped a vehicle after they observed a driver impeding traffic, exceeding the speed limit and running a stop sign.  Why was the stop lawful? Other than the extensive criminal conduct the officers observed which would have given them reasonable suspicion to stop the car, the court held that the officers were not on duty for the main purpose of enforcing traffic laws so there was no requirement that the car have the markings of a typical police cruiser. In addition, the purpose of R.C. 4549.13 is to prevent speed traps and to prevent the situation where a driver must debate whether to stop for an unmarked car, containing an unknown person.
Can you just not pull over if an unmarked vehicle has flashing lights and is behind you? No. If you continue to drive and do nothing, bigger problems could come your way, like a charge for fleeing from the police. If, for example, you are speeding on the highway and you are caught, you’re going to be pulled over by a marked vehicle. A cop that pulls you over for speeding is on duty for the main purpose of enforcing traffic laws. But if a cop sees you breaking a law, traffic or otherwise, he/she is going to pull you over to investigate.
We left off Part 1 in our series considering a value for privacy and whether technology truly is undermining our privacy choices. Is there even such a privacy to be undermined, any more? In almost every privacy talk I give, I state, “privacy is a personal value.” I usually go on to say how it is as individual as each of us. Thus, how one chooses to disclose information or not disclose information is a complex calculation – as complex as each of us. Likewise, I almost always either:
a) mutter the famous 1999 quote of Sun Microsystems founder Scott McNealy, “You have zero privacy anyway … get over it”; or
b) have to respond to a similarly worded challenge from colleagues or friends when I try to pontificate on the value for privacy and why it is worth understanding and protecting, even in this digital age.
As the years pass and the gray hairs upon my head replicate exponentially, I wonder whether people care about privacy any more? And, if they do, do our laws, technology and markets provide the necessary frameworks to safeguard privacy choices for the individual? My co-writer, Anna Langhorne, takes a look at the data.
If we consider two-thirds of Internet users visit social networking sites (Madden, 2012) and the amount of information disclosed in those forums, it seems privacy may no longer be valued. However, understanding online users’ relationships with privacy is complex. Alan Westin, “the godfather of privacy” to some, in 1967 categorized people as privacy fundamentalist, pragmatist, or privacy unconcerned. More recently, Krasanova et al. (2009b) distinguished users as unconcerned socializers, control-conscious socializers, or privacy-concerned. These typologies suggest there are differences in how users value privacy. Users seem to fall along a continuum from no privacy value to high value.
High Value for Privacy Low/No Value for Privacy
Scot Ganow, Esq., CIPP/US Anyone currently appearing on: Bravo!, E! or MTV
To be sure, we jest (well, maybe just a little). Unfortunately, typologies fail to reflect how privacy value is mediated by other important intrinsic and extrinsic factors. To further complicate matters, the research is inconsistent and incomplete.
Intrinsic factors include variables such as age, race, gender, class, personality, and motivation. For many of these, it is unclear whether they are determinants in online privacy valuation, and we are limited to usage rates. According to a Pew Internet study, 69% of online adults use social networks. Of those aged 18-29, 92% use SNSs in contrast with 57% of Baby Boomers. So, there is an age gap in SNS usage, but that gap is disappearing. Race and gender show few differences across SNS usage, and there is a dearth of information on personality. But certainly, there seem to be differences. Between media reports and personal anecdotes, we understand Generation Y members, unlike Baby Boomers, have a proclivity for sharing information and on a broad scale. This seems to contradict a valuing of privacy. Yet, Gen Y members are also known to value corporate integrity and openness (Tapscott, 2009).
Regarding the motivational aspects of privacy, we have a little more to go on. Users, even those that are privacy fundamentalists, may be inclined to share information for the purpose of impression management. Or, they may be motivated to share information when a benefit is conferred (Olivero & Lunt, 2004). Yes, personal data has a price, and oftentimes, users are willing to sell their information for fractions of a cent. Think loyalty programs – To how many do you belong? This illustrates how a user is motivated to share personal information when the rewarded by a salient incentive, and it underscores the complexities involved in privacy valuation.
A cynic might respond, “See? No one cares about privacy.” But is this really true? Even with loyalty card programs, there is a choice being exercised. In this example, discounts or services are rendered in return for a little personally identifiable information. As long as choice and consent is being exercised, we would argue privacy is being respected. A redefined value for privacy is one exercised through the tried and true principles of notice, choice, and consent. Research on extrinsic factors further support this finding.
Extrinsic factors relate to environmental considerations, like the Internet context and behaviors of external parties. Internet technologies have empowered organizations to become digital spies. They engage in activities ranging from geotagging to data scraping to online tracking. Sophisticated users may use communication privacy management (CPM), strategies to manage personal information such as withholding or falsifying personal information, to mitigate exposure (Metzger, 2007). Many users, however, lack knowledge about organizations’ information practices (e.g., third party sharing and predictive analytics) and are unable to control information (e.g., what happens downstream). Even sophisticated users may be ignorant about how information is used or what information is required in order to provide certain online services. Tailored advertising, more of a “disservice” than a service perhaps, requires privacy intrusions. Advertisers gather data on click-streams and SNS profiles for the purpose of creating detailed consumer profiles. Some of the information is gathered directly from profiles; however, profiling goes beyond that data. With limited information, advertisers are able to make accurate inferences about users. From information on Facebook, a user’s age, sexual orientation, relationship status, and religious and political affiliations may be determined (Korolova, 2011). Until users have notice of active and passive profiling activities, they may be unaware of these kinds of privacy intrusions.
Users do respond to improved notice and transparency. Study participants aged 18-24, who were informed their online activities would be tracked, were more likely to oppose tailored advertising (Turow et al., 2009, p. 16). Users are also more likely to trust organizations that post privacy policies (Pan & Zinkhan, 2006), and are increasingly using privacy settings (Stutzman & Kramer-Duffield, 2010). Therefore, it may be a matter of users not perceiving a threat due to a lack of notice and comprehension, rather than privacy devaluation.
Here, we’ve discussed some factors that mediate user approaches to privacy: trust level, activity type, personality, perceived benefit of sharing, user motivation/need, and the nature of information sharing. More specifically, all of this affirms that “privacy” is redefined today. The list goes on. But, to what end does it actually matter how users value privacy? Should external parties share accountability in privacy transactions or is this an online case of caveat user? Should regulation align better with user needs and values to address the unchecked use of personal data? Users deserve the right to prevent their exploitation and make informed decisions about the collection and processing of personal information. The current structure inhibits, and in many cases, prevents informed decision-making.
Next time, we’ll specifically discuss the legal and technological framework and how it helps, or hurts, individuals in decision making and exercising their individual value for privacy.
Korolova, A. (2011). Privacy Violations Using Microtargeted Ads: A Case Study. Journal of Privacy and Confidentiality, 3(1), 27-49.
Madden, M. (2012). Privacy Management on Social Media Sites(Report of Pew Internet & American Life Project), Available at: http://www.pewinternet.org/Reports/2012/Privacy-management-on-social-media.aspx (accessed 18 January 2013).
Olivero, N., & Lunt, P. (2004). Privacy versus willingness to disclose in e-commerce exchanges: The effect of risk awareness on relative role of trust and control. Journal of Economic Psychology, 25(2), 243-62.
Pan, Y., and Zinkhan, G. M. (2006). Exploring the impact of online privacy disclosures on consumer trust. Journal of Retailing, 82(4), 331-38.
Stutzman, F. & Kramer-Duffield, J. (2010). Friends only: Examining a privacy-enhancing behavior in Facebook. In Proceedings of CHI 2010 (pp. 1553-1562).
Turow, J., King, J., Hoofnagle, C. J., Bleakley, A., & M. Hennessy. (2009). Americans reject tailored advertising and three activities that enable it. Available at SSRN: http://ssrn.com/abstract=1478214 or http://dx.doi.org/10.2139/ssrn.1478214
Westin, A. (1967). Privacy and Freedom. London: Bodley Head. 1991.
Dateline Washington: “Government Infringement of Constitutional Protections.”
Another 2nd Amendment battle? Think again. Better watch your privacy rights.
With all the well-warranted attention being given the 2nd Amendment debate and the potential passage of new legislation to provide greater security in the aftermath of the unspeakable tragedy in Connecticut, we should not lose sight of other constitutional rights being possibly abridged. There has also been activity in Washington focused on possible impacts on Constitutional privacy protections, specifically revisions to the Electronic Communication Privacy Act (ECPA) which would expand the scope of law enforcement to collect, store and survey private citizen e-mails, web postings and text messages even further.
Currently, under the ECPA, law enforcement is allowed to collect and store electronic communications in the possession of a “provider of electronic communication service or remote computing service” for a period longer than 180 days. The government can do so without a warrant when investigating a matter and having probable cause under such a matter. Thus, anyone who uses commercial e-mail applications or social media, could every well have their messages accessed and view by government agencies without their notice or direct consent.
Yes, this is current law. This has been law for a while, but many Americans first became aware of it only recently in light of the well-publicized story involving General Petraeus. In that story, the FBI had access to the personal e-mails of the General and others involved in the matter under investigation. The unfortunate truth of this matter is that the original alleged criminal activity that prompted the surveillance was cyber stalking of one woman by another. Neither General Allen nor General Petraeus were originally named in the original complaint to the FBI filed by Jill Kelley. In the end, as it is now well known, the lives of two generals, two private citizens and uncounted people tied to each of them were forever impacted by the Government’s ability to search e-mails, related or not to the alleged crime, as allowed under the ECPA.
As if that were not enough reach for the authorities, House Resolution 2471 (H.R. 2471), as originally proposed and under consideration, would amend the ECPA to give law enforcement broader powers with respect to electronic communications surveillance and processing to include eliminating the 180-day waiting requirement while maintaining no requirement for warrant nor notice to the individuals under surveillance.
After a backlash from privacy advocates, another revision was proposed to H.R. 2471 adding back the warrant requirement and requiring, amongst other things, notice to any individuals whose electronic communications have been viewed by the government. The 180-day waiting period would still be eliminated. This proposed amendment poses concerns for law enforcement, which contend they need the access and to be free of the warrant requirement to timely respond to criminal or “emergency” threats.
As it stands today, the ECPA stands as unchanged. It still allows the government to collect, store and process e-mail messages from service providers if those messages have been in their possession for a period of 180 days or longer. But, we expect increased discussion and a possible vote on the amendment in 2013 sometime.
As with all constitutional rights, there is always the need to balance the rights of the individual and rights (i.e. security) of the governed, as whole. The ECPA and the battle over it present yet another example of our democracy in action. It also shines a light on the responsibility of the governed to speak up when their individual rights are at risk.
One of the more interesting components of a virtual law firm model is the continued exploration of enhancing client service through existing and new technological platforms. That is why we are very excited that Burton Law is receiving the Most Innovative Use of Technology in a Small Law Firm Award from ALM’s Law Technology News. We are honored to be recognized in this fashion and to be in the company of the other award recipients. Thank you to Law Technology News.
Our team made this happen. It is one thing to choose a technology platform for a business. It is another on how the collective executes on the use of that technology. In our case, each of our platforms are chosen to better serve our clients. The lawyers in the firm have embraced the platforms to collaborate on projects internally, as well as with clients, co-counsel and opposing counsel. Our virtual assistants, Interactive Assistants, has been critical to such execution, and our marketing firm, The Ohlmann Group, helps us share what we do.
A big thanks also is owed to Clio (Themis Solutions) for nominating the firm for this award. Clio is more than a tech vendor to us, more than a legal practice management solution. Their team has been an important partner in developing out the model and helping us push the use of other complementary platforms, including Box and Google Apps for Business.
We are not finished moving forward. The finishing touches are being place on integrating DirectLaw into our arsenal. Through this platform, we will provide the online delivery of legal services to clients. This will be in addition to the full-service representation of our business, litigation, estate planning and intellectual property clients.
Thank you again to LTN for this recognition. We are very grateful.
As we head into a New Year and the party that is Data Privacy Month (January 2013), it is the perfect time to take stock of privacy in the digital age. In my day-to-day experience, the term “privacy” still evokes narrow connotations involving secrecy or withholding data. This simply is no longer the case. Be it as a consumer or business, it is important to continually reevaluate and redefine what privacy means for us as individuals.
In Burton Law’s humble attempt to do so, I am happy to have help. Over the next few months, I will be co-blogging with Anna Langhorne, PhD, JD. Anna is an attorney, professor at the University of Dayton and an expert in online behavior. Together, our hope is to consider privacy through the lens of the law and technology, as the two are forever married (for better or worse). More importantly, we hope to provide consumers food for thought in exercising their own values with respect to the collection, storage and use of their personally identifiable information.
Part One: Is your inner machine undermining your privacy choices?
In a recent story about protecting children online under the Children’s Online Privacy Protection Act, the point was made the previous concern about the identifying information children provide online no longer exists. Rather, companies can build a user profile and track a child’s online behavior merely by identifying the child’s computer (iPod, iPad, desktop, cell phone, gaming console). Whether it is the device’s IP address or “anonymous” cookies left on a device’s hard drive, machines are telling more about us each and every day.
By understanding how people interact with technology, we can better inform ourselves about how to redefine privacy in accordance with our own values, make better choices and subsequently even improve business privacy policies and management. As human beings, we are indeed somewhat like machines[i], sophisticated information processors, relying on visual, auditory, olfactory, tactile, and gustatory perceptors to make sense of our world. To survive, our brains must continuously process environmental information, sorting the relevant from the irrelevant. We are essentially forced into patterns of behavior to economize our information processing. Yes, we are creatures of habit for good reason – habits allow us to conserve our cognitive resources. This is true for interactions in physical as well as digital environments.
Not only do we take cognitive shortcuts to make sense of online content and have multi-layered responses to our online experiences, but we also are highly impressionable. We engage in almost instantaneous decision making, forming a first impression of a website within 5 milliseconds. Furthermore, those impressions carry over to the impressions of other website content, products, or web pages. [iv][v] Similarly, a negative first impression is expected to transfer to other website areas and its website content. In essence, we can use visual design to shape people’s perceptions of websites and content credibility.[vi]
So, how do people cope with all of this information, especially given the World Wide Web’s state of perpetual information overload? Answer: People either process or neglect to process the online content. We can use existing knowledge structures to efficiently cope with voluminous data and environmental uncertainty.[vii] However, the consequence is we are more likely to engage in passive agreement with the content. In other words, our cognitive shortcuts cause us to skip steps in analyzing information. Because people are avid consumers of diverse types of online content and there are ever-growing sources of online information, we should be concerned about passively accepting information.
For example, consider the simple task of taking and sharing a digital picture. You may do it with your phone everyday; perhaps your children do too. Instagram makes it easy! Without even thinking about privacy, what information is shared sending that photo to a friend or publishing it online? Probably more than you think. Of course, you likely share information about the subjects in the photo, such as their identities, date and location. This personal information may be self-evident from the photo. For example, a daytime trip to an amusement park is easily recognizable. But, you also may share the same information indirectly and unknowingly, such as date and time via the time stamp on every photo. Depending on your phone or digital camera settings, to include those turned on by default, the device may send along time, date, and location information in the form of metadata. Some location and time data is specific to the GPS coordinate (latitude and longitude) and the minute and second of the day. Thus, via a Facebook posting, an unknown person may easily discover the past locations of the photographer/sender and the photo subjects. Of greater concern is someone knowing that information in real-time. You may wonder, what is the harm? There may be none. To be sure, some of us are open books and have no privacy concerns. Or, maybe the harm is limited to minor embarrassments. However, the harm could be significant and permanent.
For all our societal advances and all the technology efficiently collecting and increasingly sharing our information, privacy still depends on the individual’s personal awareness of their own behavior and by extension, the “behavior” of their machines. Thus, privacy begins (and ends) with awareness. So, as you enter the New Year and Data Privacy Month 2013, take some time to ask yourself:
- What sites or apps do you frequent the most and why?
- Do you know what information these sites or apps collect and do not collect? And, what second and third parties are included in the sharing network?
- Do you know what information your smart phone is transmitting about you? Do you understand all the settings for your phone?
- If you have kids, can you answer the same questions above for the devices they use?
It might be worth taking the time to investigate. Many businesses are doing it every day. Depending on your value for privacy, you might want to know a little more to try and level the playing field.
[i] Nelson, P. (1970). Information and consumer behavior. Journal of Political Economy, 78(2), 311-329.
[ii] Lang, A. (2000). The limited capacity model of mediated message processing. Journal of Communication, 56, 46-70.
[iii] KIM, J., LEE, J., & CHOI, D. (2003) Designing emotionally evocative homepages: An empirical study of the quantitative relations between design factors and emotional dimensions. Human-Computer Studies, 59, 899-940.
[iv] Lindgaard, H., Fernandes G., Dudek, C., Brown, J., 2006. Attention Web Designers: You Have 50 Milliseconds to Make a Good First Impression! Behaviour and Information
Technology 25(2), 115-126.
[v] Kim, H., Fesenmaier, D., 2008. Persuasive Design of Destination Websites: An Analysis of First Impression. Journal of Travel Research 47(3), 3-13.
[vi] Robins, D., & Holmes, J. (2003). Aesthetics and credibility in Web site design. Information Processing and Management, 44(1), 386-399.
Robins, D., Holmes, J., & Stansbury, M. (2010). Consumer health information on the Web: The relationship of visual design and perceptions of credibility. Journal of the American Society for Information Science and Technology, 61(1): 13-29.
[vii] Pirolli, P. (2005). Rational analyses of information foraging on the Web. Cognitive Science, 29, 343-373.
Sundar, S. (2008). The MAIN model: A heuristic approach to understanding technology effects on credibility. In M. Metzger & A. Flanagin (Eds.), Digital media, youth, and credibility (pp. 73-100). Cambridge, MA: MIT Press.
Taraborelli, D. (2008). How the Web is changing the way we trust. I K. Waelbers, A. Briggle & P. Brey (Eds.), Current issues in computing and philosophy. Amsterdam: IOS Press.
Prison in Ohio is a concept that most people, hopefully, don’t consider. The loss of liberty associated with a prison sentence is a scary thought. The reality is, if a person finds himself or herself accused of criminal conduct, going to prison is a very real risk. But Ohio provides an avenue for early release from prison called judicial release. In the past, judicial release was known as “shock probation.” It’s a unique power that the sentencing judge has to grant inmates early release from prison under certain circumstances.
Ohio Revised Code 2929.20 sets out the requirements for judicial release. Only eligible offenders qualify for judicial release. Eligible offenders cannot be serving a mandatory prison sentence. If the sentence includes a mandatory sentence, the offender must serve the mandatory time before the eligibility clock begins to run. Public officials serving a sentence for certain felonies cannot become eligible offenders. Eligible offenders may file for judicial release after serving a required amount of time in a state prison facility. Consecutive and concurrent sentences do not affect an offender’s eligibility for judicial release.
- If you’re serving less than two years you can file after 30 days.
- If your serving two years or more but less than five years you can file after 180 days.
- If your prison term is 5 years, you cannot file for release until after four years.
- If your prison term is more than 5 years but less than 10 years, you must serve five years.
- If your prison term is more than 10 years, you have to serve half your sentence or five years, whichever is greater.
Offenders essentially only get one bite at the apple for early release. The reason for this is partially because the court can deny the motion with or without a hearing. If the court denies the motion without a hearing, inmates can refile later as long as the first motion was not denied with prejudice. If the court holds a hearing and then denies the motion, game over, the offender is finishing out his or her sentence unless the court moves for early release. Needless to say that’s rare, to say the least. A hearing is required before the motion is granted.
The hearing must occur within 60 days after the motion is filed, but the court may delay up to 180 days. After the hearing, a decision is required within 10 days. If the court is going to deny the motion and not have a hearing it has 60 days.
All parties involved in the original action will receive notice of the hearing and an opportunity to be heard. The prison must provide the court with reports on successful rehabilitative activities, if any. The report will also include information about the inmate’s conduct at the prison and his or her participation in educational or vocational training, work, treatment and other rehabilitative activities along with any disciplinary action taken against the inmate.
Inmates can file for judicial release on their own, without an attorney. Having effective representation, however, is important for a number of reasons:
1. Like Luke Skywalker and the Deathstar, you will only get one shot. You want the best X-Wing pilot you can find.
2. The same court that sentenced you is the one who decides to let you out early. If the same judge is on the bench, offenders are asking the judge to second guess his original sentence. For example, if a judge thinks a four year sentence instead of a six year sentence is appropriate, that’s going to be the sentence. A judge isn’t going to sentence someone to six years and rely on that person to file for judicial release after four years.
3. An inmate with the assistance of counsel can present an effective argument in favor of early release if the inmate can show rehabilitation. And that’s the key, rehabilitation.
Once the motion is granted, the offender is released from prison and placed on supervision, also known as community control, for 1 to 5 years, with the balance of the prison sentence suspended. If the offender violates community control, the court may put the offender back in prison to serve the balance of the prison sentence.
Burton Law accepts clients for judicial release cases. Contact me by email or telephone and mention this blog article for more information on the fees associated with judicial release eligibility opinion letters and cases.
One of the first things on which I always counsel a prospective client is whether pursuing a patent for their invention is really the best way to spend their (often times very limited) time and money. While there are numerous things a prospective applicant should consider, here are a few of the most common things to assess before diving into the patent process.
- It is a right to exclude. To be sure, a patent provides a patent holder the right to exclude others from practicing their invention without prior approval or license, etc. So, right off the bat, inventors need to know that they are simply establishing, in effect, a monopoly over the invention explicitly described in the claims of their patent application for the term. This does nothing to stop others from practicing everything but their invention and still compete. So, the inventor needs to ask herself, “If I get this patent as claimed, will it truly keep others from interfering with or stealing my unique contribution to the marketplace?” If the answer is “no”, then the inventor, often with the help of a patent attorney, should consider the claims more carefully or possibly pursue other ways to protect the claimed invention.
- Subject Matter. Is the invention even eligible for a patent in the U.S.? U.S. patent laws only allow patents to be issued for certain subject matter: machines, process, composition of matter or manufacture. Many things, such as software, are sometimes considered patentable and sometimes not, depending on a myriad of tests and what the software actually does. If the answer to this question is “no” or “I don’t know”, then the inventor might consider other ways to protect his invention.
- Concerns for Anticipation. In other words, is there another patent or other published document out there that already teaches the invention you are seeking to patent? One sound investment in your patent strategy can be to complete a search for any such “prior art” that could be used by the U.S. Patent and Trademark Office to reject your application. Searches can be conducted by a variety of service companies, attorneys, or you can take a shot yourself to see if anything comes up. Regardless, although not required in the patent application process, conducting a search of prior art can save a lot of time, money and headaches.
- Expense. When it’s all said and done, depending on the complexity of the invention, an applicant can expect to spend anywhere between $10,000 to more than $100,000 including attorneys’ fees and United States Patent Office fees. Again, if the patent is truly unique and provides the holder 20 years of exclusive right to practice the invention and exclude others, the applicant will most likely make these costs back several times over. But, if the patent is of questionable subject matter, or novelty, and thus even at risk of never being published, the costs could be prohibitive. And this is just to get the patent issued in the first place.
- Enforcement and Commercialization. So, you now have a patent. Now what? One of the main considerations at the onset should be a plan to capitalize on the value of the patent through commercialization. Whether you will practice the invention yourself, such as creating a company, manufacturing and selling the invention, or through a license to another company, you need to know how you plan to make money with the patent during its term. Secondly, how do you plan to enforce it? The recent legal battle between Samsung and Apple (two companies with deep pockets) shows us the time, energy and money that go into enforcing patent and obtaining damages or injunctions against infringers. Bottom Line: If you pursue a patent, now what you will do with it if/when you get it.
- Alternatives to Patent Protection
a. Trade Secret Protection.
If the previous points are giving you pause as to whether you want to pursue a patent, there are other ways to protect your intellectual property. One such method is trade secret protection. The most famous of trade secret protections, I think, is probably the formula for Coca-Cola®. The formula has been around for decades, yet has never been disclosed by the company. By not disclosing the formula and taking steps to keep it a trade secret, the company has availed itself of trade secret protections recognized at the state and federal level, as well as abroad in some cases.Now, one might ask, why would they not patent the formula? Well, I can only speculate, but if you have a truly unique invention with unlimited potential in both sales and longevity, would you want to publicly disclose it to the world for a patent, which only protects that formula for 20 years? Public disclosure is one aspect of patent issuance that might weigh against seeking patent protection and pursuing an alternative like trade secret.
In some instances, as the aforementioned case of software, copyright protection might be the better manner in which to protect your invention.
In summary, and as a patent attorney, I obviously believe in the value of patents. Protecting one’s invention under U.S. patent can be one of the most effective ways to build a company’s brand and business portfolio. I simply offer up these important (although far from exhaustive) considerations for any individual or business considering patent to enable them to make educated decisions in their intellectual property strategy.
Scot Ganow can be reached at email@example.com.
As an avid runner, as well as to somewhat build on the excellent previous blogging on biking of my esteemed colleague, Brandon Cogswell, I feel the need, no, I am compelled to take this opportunity to reiterate the important and long standing laws on the books regarding the interactions of pedestrians (including walkers, staggerers, joggers, runners, sprinters, leapers and the like) and their vehicular counterparts. The truth is the roads in Ohio (and any state) are becoming more crowded and more dangerous than ever, and nowhere is this more evident than those junctions where bipeds and autos/motorcycles meet.
Interestingly enough, the golden rule of the pedestrian always has the right of way is not entirely accurate under the Ohio Revised Code (ORC). The better statement is to say the pedestrian has the right of way on select parts of our roads and portions thereof. To be sure, a pedestrian always has the right of way on the sidewalk (ORC 4511.441). Likewise, pedestrians have the right of way in all marked crosswalks (ORC 4511.16). However, the key terminology there is “marked.” Thus, the law does not protect jaywalkers or those who decide to cross a road at any unmarked section. The burden is clearly on the pedestrian to ensure he is walking or crossing in a safe manner. Now, it is important to remind all drivers that a cross walk is the protected area bound by and including the two wide lines between which pedestrians can walk. The crosswalk is NOT the stop line or forward point of progress for your vehicle to reach before you stop your car at an intersection. Indeed, many streets are even marked with a separate stop line in advance of the cross walk for this very purpose. Some municipalities go as far as to have signs conveniently and conspicuously stating as much (i.e., “Stop Here” with an arrow pointing to the stop line). The Code also requires pedestrians to, whenever practical, limit walking in crosswalks to the right side or half of the crosswalk. (ORC 4511.49).
Now, an area that causes many a driver (and runner) some stress is on what side of the road should a runner run, much less if a runner can even share the road with vehicles. Thankfully, ORC 4511.50 provides the answers. First off, a runner is always expected to run on a sidewalk when one is provided. Secondly, when a runner must absolutely run in the road because a viable sidewalk is not available, she is expected to run on the left side of the road as far on the shoulder as safely possible and facing traffic. This latter requirement is extremely important for a runner as it ensures her that she can see the vehicles approaching as it is never certain the driver will see the runner. As the runner is actually on the road, she must ultimately yield the road to the vehicles.
All this being said, no recitation of the Ohio Revised Code is going to save you when running and negotiating the perils of the road. Pages of paper will not protect you from becoming the hood ornament to the latest crossover SUV. So, please allow me to further provide some tips to runner and driver alike, to ensure paint jobs stay immaculate and runners keep running.
- Don’t text and drive. It is the law in Ohio, after all. I would say nearly 40% (unscientific poll with a rather wide range of human error) of the drivers I see on a daily run are not watching me at the stop sign or even the road, but rather their phones.
- Make eye contact. Runners should always make sure a driver at an intersection sees them before proceeding into the crosswalk or street—this is true whether the runner has the right of way or not.
- Look Right!! Drivers making a right turn (myself included) notoriously focus only to their left on oncoming traffic. Some go as far as to let their cars edge forward into the crosswalk or sidewalk as they seek their moment to break into rush hour traffic. Without looking to their immediate right, they can miss a runner or pedestrian waiting or actually trying to cross the street.
- Drivers please take a moment to make that last look to the right before pressing your gas pedal.
- Runners, please see #2.
- Runners wear bright clothing. You do not have to go all Wham! on us, but wearing light or bright clothing, to include fluorescent tape strips or vests ensures drivers have a better chance at seeing you (assuming they are not texting).
- Ditch the headphones. Or, at least turn them down as you go-go, so you can hear ambient sounds over your Wham! Greatest Hits Volume II playing on your iPod.
Again, I implicate myself amongst the drivers of the world who can do better in dealing with ever increasing distractions. But as runners and drivers, we can all be a little safer in taking a breath and reminding ourselves of good habits to go along with good laws.
Scot Ganow can be reached at firstname.lastname@example.org or 937.610.0444.