Category Archives: Intellectual Property

Posts related to patents and trademarks.

An update to our Terms of Use

We had always treated our customers data as confidential, and have never shared that with anyone else.  At the suggestion of one of our users, we have updated our Terms of Use to make this a written commitment.

We have added Section VI to our Terms of Use:

“Confidential Information” means information identified by you as confidential at the time of disclosure or that a reasonable person would consider confidential due to its nature and any confidential, proprietary, or privileged information disclosed while creating or modifying the Kerika boards.

Kerika shall preserve the confidentiality of your Confidential Information and treat such Confidential Information with at least the same degree of care that Kerika uses to protect its own Confidential Information, but not less than a reasonable standard of care.

Kerika will use your Confidential Information only to exercise its rights and perform obligations under these Terms. Confidential Information will be disclosed only to those employees of Kerika with a need to know such information in connection with Kerika’s use of the Confidential Information in accordance with these Terms.

Kerika shall not be liable to you for the release of Confidential Information if such information is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, Kerika will notify you promptly of such required disclosure. Kerika agrees to promptly notify you of any unauthorized access to or disclosure of the Confidential Information.”

One of our patents is getting referenced by others

We just realized that one of our patents, US Patent No. 7,958,080, is getting referenced by other inventors:

Patent Applicant Title
US8214313 Ford Motor Company Turn rate calculation
US8489647 IBM Use-case based configuration of an object-relational mapping framework
US8543785 Microsoft Protocol for managed copy of media content
US20080028170 Microsoft Protocol for Managed Copy of Media Content
US20110137763 Dirk Aguilar System that Captures and Tracks Energy Data for Estimating Energy Consumption, Facilitating its Reduction and Offsetting its Associated Emissions in an Automated and Recurring Fashion
US20120054227 IBM Use-case based configuration of an object-relational mapping framework

Well, this is interesting…



The value of trademarks (and other intellectual property)

Not many startups seem to think that having a registered trademark, or a patent for that matter, can help real, tangible assets for the company. Most entrepreneurs seem to think that getting a “.com” domain name is all that’s needed to create their company’s identity.

While getting a “.com” domain name for your new company is undoubtedly valuable – and we don’t believe a “.net” or “.biz” or any other variant is nearly as worthwhile – getting a registered trademark, a registered service mark (if appropriate), and patents are all very important for startups.

Early on we registered “Kerika” and our distinctive flower logo as registered trademarks and registered service marks. Getting the registered status for a trademark is more expensive – although not prohibitively so, in our opinion – and certainly more time-consuming than simply slapping on a “TM” after your product or company name, but there are very valuable benefits from having the registration.

One simple benefit is that you can claim your registered trademark on social media platforms even if you weren’t the first to register that particular name. For example, we weren’t the first to register “kerika” as a username on Facebook or Twitter or YouTube, but we were able to get these usernames assigned to us because the word is a registered trademark, and that’s a very powerful lever to use with third-party companies.

There are other benefits, of course, particularly if your company or product name is a “made-up name” – which, incidentally, makes it a lot easier to get registered as a trademark or service mark – such as making sure that your competitors don’t try to get cute by using similar names. (Remember Jobster?)

And once you get a registered trademark, you need to remember to file additional paperwork after the first 5 years, and that’s what we finished doing recently. The US Patent & Trademark Office have improved their processes in recent years, so that when you file for an extension after 5 years of using a registered mark, you can apply for a “declaration of incontestability”, which gives you even greater rights to your product or company name.

(We just received our “declaration of incontestability” for registered trademark and our registered service mark.)

There’s a lot of value in getting a patent as well, although the cost of this can be very significant. If you have been truly innovative, and have really invented something new, you should get it patented. A patent reflects the hard work you put into your innovation: it isn’t granted lightly by the US Patent Office – despite what you may read in the press about “thousands of junk patents” being issued everyday. In our case, getting a patent for visual templates took years of waiting, hundreds of hours of effort, and cost a bundle.

But, we feel it was well worth the time and effort! If a competitor tries to copy Kerika, we will make our displeasure known!

Some thoughts on software patents

A very big day for us at Kerika: after more than six years of perseverance, we finally got our first patent issued today: United States Patent No. 7,958,080. (Yeah, that’s certainly a big number: a lot of people were granted patents before us!)

There is a lot of debate in our profession about software patents: strong opinions have been voiced in favor of granting software patents, and equally vociferous views have been aired in opposition to the entire concept. What’s discussed much less frequently is how long it can take to get a software patent, or expensive and arduous the process can be.

Our original provisional application was made on October 29, 2004; this was followed up with a final application, and then dead silence for a couple of years. When the Patent Office finally examined the patent application, there was a multi-year exchange of correspondence with the Examiner, with the Examiner making various arguments in opposition to granting a patent, and our lawyers making counter-arguments in favor of Kerika being granted a patent.

All this back-and-forth is quite normal, by the way, and works as designed: it’s the Patent Examiner’s job to not grant patents without challenging their claims, and it’s the applicant’s responsibility to offer increasingly stronger arguments in favor of being granted a patent. What is finally granted is usually a subset of the claims that were made in the initial application. It’s very rare for all of the initial claims to be granted.

Software patents are harder to get, and take much longer to be granted, than hardware patents, probably because it is easy to compare one tangible object with another and determine whether one is materially different than the second tangible object.

Software is harder because it is intangible: you have to describe an intangible item, using the jargon that’s peculiar to patent applications, in way that clearly distinguishes it from another intangible item.

The net result is that a software patent can take many more years to be granted, in comparison to a hardware patent. One of the problems with the process taking so long is that, by the time the Patent Examiner gets around to examining your application, the technology may have become so prevalent in other, competing products that it no longer appears to be as innovative as it was when the application was first made.

The entire process is also very expensive, particularly if you are a solo inventor or small startup (as we are): the Patent Office has been hiking its fees over the years, with the stated intention of hiring up more examiners, and thereby speeding up the process, but clearly they are having a hard time keeping up with the flood of applications because it seems like the delays are getting worse, not better.

Regardless of whether you are pro or con software patents, we would argue that both sides of the argument would be served better if the process of examining, granting or rejecting a patent were shortened very considerably. If a patent could be examined and acted upon within 2-3 months, it would entirely change the debate as to whether software patents are good or bad for innovation.

Meanwhile, back at the ranch… we have other patent claims in the works, which we hope will take less time to work its way through the Patent Office now that our first patent has been granted!

Out of the billowing smoke and dust of tweets and trivia emerges our first patent

“The literati sent out their minions to do their bidding. Washington cannot tolerate threats from outsiders who might disrupt their comfortable world. The firefight started when the cowardly sensed weakness. They fired timidly at first, then the sheep not wanting to be dropped from the establishment’s cocktail party invite list unloaded their entire clip, firing without taking aim their distortions and falsehoods. Now they are left exposed by their bylines and handles. But surely they had killed him off. This is the way it always worked. A lesser person could not have survived the first few minutes of the onslaught. But out of the billowing smoke and dust of tweets and trivia emerged U.S. Patent No. 7,958,080 to be issued on June 7, 2011. Once again ready to lead those who won’t be intimated by the political elite and are ready to take on the challenges America faces.”

Out of the billowing smoke and dust of tweets emerges our first patent
Out of the billowing smoke and dust of tweets emerges our first patent

Our first patent! We are hoping the coming apocalypse doesn’t cause any more delays at the Patent Office; we have been waiting a long time for this patent to get issued, and there are more in the pipeline!

Safe house, honey pot, or just dazed and confused at the Wall Street Journal?

The Wall Street Journal is creating its own version of Wikileaks, call SafeHouse, where you are invited to

Help The Wall Street Journal uncover fraud, abuse and other wrongdoing.

What would they like from you?

Documents and databases: They’re key to modern journalism. But they’re almost always hidden behind locked doors, especially when they detail wrongdoing such as fraud, abuse, pollution, insider trading, and other harms. That’s why we need your help.

If you have newsworthy contracts, correspondence, emails, financial records or databases from companies, government agencies or non-profits, you can send them to us using the SafeHouse service.

“SafeHouse”, however, sounds more like a “honey pot” when you read the WSJ’s Terms and Conditions, which offers three ways of communicating with SafeHouse:

1. Standard SafeHouse: […] Dow Jones does not make any representations regarding confidentiality.

2. Anonymous SafeHouse: […] Despite efforts to minimize the information collected, we cannot ensure complete anonymity.

3. Request Confidentiality: […] If we enter into a confidential relationship, Dow Jones will take all available measures to protect your identity while remaining in compliance with all applicable laws.

OK, so as they say, “You use this service at your own risk.” But, here’s where things start to get puzzling:

You agree not to use SafeHouse for any unlawful purpose.


If you upload or submit any Content, you represent to Dow Jones that you have all the necessary legal rights to upload or submit such Content and it will not violate any law or the rights of any person.

How can anyone provide confidential documents that belong to another organization without violating the rights of that organization?

Even if you put aside for a moment the absurd notion of a “SafeHouse” where you can post materials that belongs to others, without violating the rights of these others, or any laws for that matter, there is a more puzzling question of why the Wall Street Journal has decided to create their own version of Wikileaks in the first place.

An editorial from June 29, 2010 was entitled “Wikileaks ‘Bastards'” which effectively summarizes their views on anonymous leaking. The WSJ has been consistent in their stance: there are other editorials from April 25, Jan 21, Dec 31, etc., and even today’s editorial page notes that

…we have laws on the books that prohibit the unauthorized disclosure of government secrets. Those laws would fall hard on any official who violated his oath to protect classified information.

So why would they try to create their own version of a communication forum that they clearly despise? An editorial from Dec 2, 2010 provides a clue:

We can’t put the Internet genie back in the bottle.

Well, one place the Internet genie hasn’t yet visited is the Wall Street Journal’s main website: a search for “SafeHouse” there yields no results. Nothing to see here, folks, move along now…