As more and more people develop new things, it helps to keep yourself protected from any intellectual property issues. In this episode, Juliet Clark talks to Devin Miller about this topic. Devin is an entrepreneur and a patent and trademark attorney. He shares with us his knowledge about how to keep your intellectual property safe, especially in three areas: patents, trademarks, and copyrights. In particular, Devin takes us into the world of software and what you need to do to ensure that you won’t get tangled up with patents and copyrights problems. On starting a venture, Devin then shares the process of screening your ideas along with finding the investors who will be willing to back you up.

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Software And Startups: Protecting Your Intellectual Property With Devin Miller

Our guest is a little bit different. I found him over on LinkedIn and he works with startups. His name is Devin Miller and he established his own startup while earning a Law and MBA degree at the same time. Since then, he set up several more startups and he enjoys every minute of it. It’s truly his passion. He has a passion for new business models and the prospect of a business startup is always making his heart race. He says he’s an entrepreneur who also is a patent and trademark attorney. He’s obtained several degrees including a Law degree and a Master’s in Business Administration. He has a degree in Electrical Engineering and Mandarin Chinese. How many degrees do you have total?

I have four. I decided that four was a good number to stop at.

I stopped at two, so I’m jealous at this point. When did you have time to do all that?

We make time for the things that we want to do. I don’t know where the time came, but I figured it out and got them all done.

Why are you interested in Chinese? Was that related to business? You saw a lot of the business moving over there or is it something you’ve always wanted to do?

It was more related. I’m a member of the Church of Jesus Christ of Latter-Day Saints. They serve missions for their church. I happened to serve in Taiwan for a couple of years. I learned the language when I was over there and then came back and picked it up as a second degree while I was doing electrical engineering.

Let’s talk a little bit about copyrights and setting up software. What do you need to do to protect yourself because many people are out there developing new things? My audience is primarily book related. Talk to us a little bit about copyrights and why those are important for your books.

To give you the background, maybe I’ll walk through the intellectual property of the three main spots to give you that quick overview and set that up. You have the three. They are going to be patents, trademarks and copyrights. Patents are looking for products or something that has a functionality utility to it, something that does something. Think of an invention is under patents. Trademarks are going to be for your brand. Whether it’s a company name, a logo, name of a book, name of a publisher or anything that’s going to be anything branding-wise typically falls under trademarks. Copyrights are going to be under creative. Books, movies, podcasts, recipes, blogs, photos, videos, or anything of that nature, they’re going to be creatives that are going to go on to copyrights.

Now getting more to your specific question as to why you would look at copyright? Copyrights are a bit different than patents and trademarks in the sense that you get some inherent rights as soon as you create the copyright. You record the podcast, you get some inherent rights to it. You write the book and publish it, you get some inherent rights. As soon as you make the creative work, you establish your rights to that work via copyrights. The thing that a lot of times you’ll want to do or to be able to point back to is let’s say you want to protect your copyrights. You write your book, you don’t want somebody ripping it off, copying it or using it as their own, or the same thing with any other movie or pictures or whatnot.

You want to establish the date that you came up with it or the date that it was created, which can sometimes be easy if you happen to have a podcast and the tags, the date you recorded it, you can show that. Other times, it’s a bit more difficult. When did I take that picture? Maybe it was tagged, maybe it wasn’t. When did I start writing the book or finish it? A lot of times you’ll register copyright and it goes with the Library of Congress that you’ll register your copyright so that it helps you establish that date. It also puts people on notice when you register it with the Library of Congress, then others know that you’ve created it, what date you created it. It’s harder for them to say, “I didn’t know,” type of a thing. That’s generally why you go after copyrights and then it gives you the ability to go and stop others from knocking it off, copying it, plagiarizing it, or otherwise gives you more recourse to that.

Maybe you can bust a myth. I think it’s a myth, but I have a lot of authors when they come to our company tell us, “I mailed the manuscript to myself. That’s all I needed to do.” Talk about that. I always tell them, “I don’t think that covers you.”

I would put it as it’s better than nothing. If you want to mail it to yourself, sure. It gives you some idea. Does it stand up in court? There are a lot of questions as to, is it timestamped? Is it dated? Did you open it? Did you reseal it? It’s better than nothing. Copyrights are fairly cheap. You can register for $200 or $300 typically. I’ll give the startups or small businesses the two guidance. One is if you’re saying, “I don’t have the money,” or “I’m a starving author. I need to put all my resources into getting my book out,” then it makes sense to spend that money elsewhere. If you’re getting some notoriety, a claim, you’ve got a following, you’ve written a book before and now you’ve written your second one, or you’re doing something of that nature, you better spend that small amount of money to do it right. Get the dates defined and make sure that you’re putting people on notice. Mailing it to yourself doesn’t do much of that. It’s better than nothing because you can point to something that shows somewhat of a date, but it’s questionable as to whether or not it will work.

Intellectual Property: Software is an interesting animal in terms of intellectual property. It splits a deck between copyrights and patents.

Was that a practice in the music industry because these people came from the music industry and it sounds like that’s something they used to do.

It more started with patents. The US has now changed in about 2013. It used to be that there was the first to invent. It means whoever invented something first, as long as you could prove it, you have the presumptive rights. A lot of times you’d have inventors that would do the same thing. They would mail a dried up of their invention that showed all the details and they are trying to do that. The US then moved to what’s now called the first to file, which means the first person to file on an invention has the presumptive rights. That myth is completely busted that it doesn’t work for patents at all. It spread from patents over to copyrights. There are a lot of things out floating on the internet that people read and think it’s true. It started at patents and migrated over at copyrights. It’s not a great idea on anything. If you’re not going to do anything versus doing that, you might as well do that, but I would never rely on it.

If you end up in court, I don’t think they even look at it anymore.

If you’re at that point where you’re on your last leg to make some case, but that’s not where you want to be.

A lot of people out there are developing software. Is that more difficult? Not the actual making of it, but getting something like that approved. It seems to me like software would be pretty easy to steal.

Software is an interesting animal. It splits a deck between copyrights and patents. If you’re to look at the actual code, whether it’s a book, a software, code or whatever, what you type out or write out, that’s protected under copyright. If you’re worried about people copying and pasting your code, you can protect that fairly easily under copyright. That stops people from copying and pasting your code. If you’re saying that only does you good because you can fairly easily design around or rewrite the same code in a different way to get around it, so copyrights give you a minimal amount of protection. Typically, software falls under patents. Patents protect more of a little bit higher level. You’re not down to the code level, but rather you’re down to functionality or how the software works.

I have five steps and it gives you these five instructions that accomplish these five things. That’s the level that you get with patents. As far as protectability on software, the pendulum swings as with all right or a lot of the legal system. At some points, it’s more difficult to get software patents and they clamped down on it and you get some bad core cases and then it will swing back to the right word. It’s a lot easier. Right now you’re in the middle where if you have a reasonable software device or software program that you’re trying to protect. You can get patents on it. I work with everything from startups to small businesses. I’ve worked previously with Intel, Amazon, Red Hat and some bigger software players. They fairly regularly file and get software patents. It’s still one that’s fruitful.

The only thing I would caution people is what people sometimes will try to do. They’ll try and take something that’s well-known out there adding 2 plus 2 equals 4 or something simple. They’ll stick it on a computer and say, “I made a software or program. Now it should be patentable.” That’s the threshold that it has to be doing something more than everybody else has already previously done and now you’re sticking it on a computer. If you can meet that bar, software a lot of times can be protectable and defensible.

If you have a great idea and you wanted to explore if somebody else already done this, how would you go about doing that?

There are a few stages. Google is a great place to start in the sense that you might as well look on Google if somebody else has done that. At least do a little bit of homework beyond doing a simple Google search. The next one is you can go to what’s called Patents.Google.com and you can do some simple searching. You can do a little bit of searching on your own, see what’s out there, use some keywords, and see what pops up. If you’re getting serious, you’re probably going to end up doing what’s called a patent search. You’ll have an attorney that you’ll sit down to describe your invention or your product or what your software will be. Have them do a more formalized search that can give you an idea of what’s already out there, what the landscape is, and what others have done.

If it looks like it has already previously been invented by somebody else or if it looks like it’s open to file a patent on. It hits those stages. Start out doing your homework, doing a Google search, maybe do a little bit of patent searching yourself. If you’re going to invest some serious dollars or try and get something going, invest a lot of time and money, it’s probably worth doing a patent search by an attorney that can decipher and know what to look for a lot more.

This is where some people get confused these days about software too. We used to get these software things inside of a disc and now they’re all on the internet. How do you tell on the internet if yours is exactly like someone else’s? How would you differentiate if you’re an amateur with a great idea?

It is a little bit of guessing. Some companies are better than others. Some software programs, you can get into a lot of the nitty-gritty details and they provide a lot of online documentation or you can download it and try it out. Others, it’s a little bit more of a black box to where you don’t see what’s going on in the background. You put an input in and if it does something for you and it gives you the result. For those ones that it’s more of the black box, you’re going to see what you can that’s out there, what information is and start to fill in the blanks. It looks like, “I could do this better than that software. I didn’t do this differently. It will be cheaper or more efficient,” or something of that. It identifies the areas or the spots where you think that will make your competitive advantage. A lot of times we’ve seen, “This is why I don’t like this software. This is what this software does. It doesn’t do well.” You’re then going to identify that competitive advantage and see.

The other thing you can do is let’s say you find software, it says, “It’s at least close or maybe doing the same thing. I can’t quite tell.” You can then look up the patents for that company or for that individual and see what they’ve already been doing or if they filed any patents and protecting that. A lot of times a patent will give you a lot more detail because you have to be more detailed when you write them up. It gives you another way that you can identify the software in line. If you can get a whole bunch of detail, great. If not, look at their patent filing, see if you can garner any more detail. If none of that works, then you’re going to have to roll the dice a little bit or say, “Here’s where I think we’re different. I cannot be 100% positive, but it appears to be different. Let’s go forward or not.”

I’ve seen people that have written whole software programs. I had someone run one by me years ago. I would think you would research it and then develop it, not develop it and then research it. Where’s the point there where you say, “My idea, I don’t see it out there. Am I going to do it?” 

It’s a simple question. The answer is not quite simple. It’s a hard one with startups and small businesses. At one point, you can research yourself to death and sometimes you spend more time doing research, getting the product up and running, and/or you talk yourself out of it when you may have something there. Sometimes research can be a killer. On the flip side you get startup or somebody that will start something out, they’ll get it all, they’ll invest a lot of time, money and effort, only to find out that somebody has already done it or they have a patent on it or it’s already been created. There’s that middle of the road where I would do some initial research and see you if I can see anything out there. If not, then get going on it.

I would say more often than not, the problem with startups is a lot of people have great ideas, but the execution is where it counts. If I were to err on one side or the other, I’d probably do high-level research, spend a few hours. If I couldn’t see anything, I’d get going. Get it out in the marketplace, see if it is viable or if it will make money, and then try and do as much as you can as you start to see that people want it. The other flip side is that every inventor or every individual thinks their idea is a great idea. Some of them are a great idea.

I’ll have five ideas before I get into work in the morning. Most of the time, if I spend five minutes thinking about it, all five of which probably aren’t the greatest ideas. My general rule is if I have an idea that I like, I’ll write it down, put it aside for a week and then pick it back up. If I still think it’s a good idea after a week, then I’ll put more time and effort. If after a week I pick it up and say, “That was a dumb idea. That wasn’t worth the best thing,” then I won’t. What I would do is get it going, figure it out, see if it works in the marketplace, and then do the additional work beyond that. That’s generally what I see.

That is the exact formula I use when I write books. I will lay them out on index cards on the floor and walk over them for a week, changing where everything’s at. It’s amazing how similar all of that is. I’m curious because you stoked my interest when you said you always think your idea is a good idea. I remember talking to a metallurgic engineer and having him tell me all about his invention. Literally, my eyes were glossing over. You probably would have appreciated it being an engineer. How do you get to the point where you can describe for marketing purposes what you did without killing people with boredom? Do you have any ideas on that since my people are creative?

Intellectual Property: You can have the world’s best product and idea, but if investors have no confidence in your ability to execute it, then you’re going to have a hard time.

For me, it always goes back to if I can tell a good story and paint the picture of why somebody would want it. Usually, if you can describe, give them an actual scenario. It’s a lot the same whether it’s a book, a story or a business you’re building a brand around or a patent in a product. If you can use a story or a situation and say, “Here’s why this makes sense.” One of the companies I’m working with is doing with wearable diabetes monitors. You don’t have to do finger pricks and it’s more like wearables, a watch, only a lot more technology under the hood. That sounds cool but I can bore you with all the technical details of the types of sensors they use, all the analytics, the math and everything else.

If you’re an engineer, you’ll probably find that interesting. For everybody else, your eyes are going to gloss over and you’re going to lose it. If you were to start to say, “Wouldn’t that be cool for all those people that are doing diabetes monitoring if they don’t have to prick their finger anymore. Not only that, they can have a watch and they can tell them at any given time where their diabetes is, if they’re controlling it well, or if they’re about to enter an episode.” Painting that picture, you’re like, “That’s cool. That makes sense. I would want one of those,” if you have diabetes. That’s a lot of times where if you can paint that picture and put it on a level of how this is practical application, why people like it or why they’d want it, then it bridges the gap between two technical or eyes glossing over versus a marketing idea.

That is great the way you described that because I’m sure anybody you’re talking to that has pricked fingers is not happy about having to do something like that. That was fantastic. You put a lot of startups together with investors. Is that correct?

All sorts of different ways I’ve structured it but yes, some of them had been investors.

What do startups need to know when they go into it? When they hire someone like you, should they already have some things in place that make what you do a lot easier?

Every business is different. Some businesses I’ve been a part of, we didn’t take any investor dollar because it didn’t make sense. One of the myths or misconceptions is I always need to get investors. Sometimes you don’t want investors either because you’ll lose control. Taking money off comes with obligations. Sometimes when you’re saying, “Can I bootstrap this? Can I get something out in the marketplace and I don’t need investors?” It will be a little bit slower. It will take a little more time and effort. Money doesn’t solve all problems in the business world, even though everybody thinks it does.

For the types of businesses that do need investors, a lot of times I’m asking, “Is this going to be an expensive endeavor?” or, “I don’t have the funds but it’s going to be more than I need,” or, “I need to get it to market quickly because it’s an ever-evolving thing.” It’s those types of things. Investors are going to look at, “Do we have a good plan behind it?” When you go into any type of investors, you’re going to have more than the idea stage. You can’t say, “I got this great idea,” and then they’re going to say, “Do you know what’s the size of the market as well?” “No, but it’s big.” One of the worst lines is this, “It’s a $20 billion market. If I get 1% of that, think how much money we’ll make.” It’s true but for investors, it’s a terrible line because it shows that you don’t have any plans.

If you can go in and say, “I’ve got this product, this invention or idea, this book or whatever, and here’s the market. Not only that, here’s how I’m going to approach the market. Here’s my plan of how we’re going to penetrate it, why we’re going to be different, how we’re going to hit the verticals of marketing and sales and making the product or writing the book.” You go in with that type of a plan that gets you much farther. A lot of times investors especially earlier on, are going to be investing as much in the individual as they are in the business. If they’re confident and you go in and knock your socks off, “I’ve got this all through. I’ve got everything in place,” they get that confidence. They’re a lot more likely to invest in you. You can have the world’s best product and idea, but if they have no confidence so you can execute it and you have no plan, you’re going to have a hard time getting it. That would be the one thing.

If we were to jump over to copyrights, trademarks, and patents, that again is situational. A lot of times, copyrights, you don’t necessarily have to have that in place or investors. It depends on what you’re saying is your novelty or what’s the nugget for your business. Meaning if your business is centered around innovation and bringing out new technology, they’re going to want to make sure that proprietary technology is protected or at least you have a plan for it if I get investor dollars and a rock-solid plan of how I’m going to protect it.

It’s the same thing when let’s say you’re building a brand and you’re saying, “We have this great plan, marketing it and launching it. We’ve got a great story to tell. Everybody’s going to resonate with it,” then you better make sure to either have that trademarked or make sure that you have a plan to trademark or how are you going to protect it. It’s the same thing with copyrights. If you’re going to go and invest a whole lot of time and effort into doing a book and then you say, “What is your plan to make sure people don’t knock it off?” “I’m going to hope that everybody’s a good neighbor and doesn’t do anything.” You probably got an issue. Those are the things investors often look for.

You brought up a great point there though, that most of the time they’re investing in you. What kinds of things are they looking for?

It depends on what stage. If you’re a solo person that you’ve got a plan, you’ve identified for the individuals that you need on the team. These are the types of people I need. This is what the skillsets will need to be. This is what I’m going to need to pay them. Here’s my plan of how to go about and get those types of people. If you’re a little bit farther along and you already have the team, then you’re going to say, “I can’t do it all or I don’t have all the skillsets, but I’ve identified those other people on the team.”

Going back to the wearable diabetes monitor, we thought that through. That one takes a lot. You have to have marketing, technology, sales, finances, and someone that’s in manufacturing. You may not have all that upfront and probably not, but as much as you can show we have a good team that’s already behind this, or we have plans in place or this is how we’re going to go about getting that team. That’s one. The other is you have to be able to answer the questions in a good way. If they feel like you’re hedging your answers or you don’t know, you’re better if you say, “I don’t know,” than you are to make it up because most of the time they can tell well if you’re making up an answer or you don’t know.

One is to do as much of your homework on as many things fleshed out in your plan. Two is don’t make up answers you don’t know. Three is to be able to tell a little bit of that story. A lot of times, investors are going to get a lot more excited if you can paint the picture. Let them know why this matters and why this will work. You show that you have the answers and you have the confidence, then paint that story as to, “Here’s how we’re going to turn your investment from $100,000 into $1 million. Here’s how we’re going to do that and here’s the plan to do it.”

That is so much great information. Where can we find you if we want more information like this? This has been illuminating. Thank you.

There are a few places. People are always welcome to email me directly so they can reach out to me at Devin@MillerIPL.com. They can also go to the website where I offer a free strategy session. Let’s say you are on copyrights or do I need a trademark, copyright, a patent or anything? They can go to the website and they can schedule a free strategy session. I sit down with startup or small business and say, “Do you need this? Do you not need this?” I’ll give them an answer. Usually, I’ll try and answer. If I was in their shoes, what would I do or what would I want to know? We’ll sit down and have that strategy session. It doesn’t cost anything. You can get an idea before you start investing in things. You can go to that. That’s at MillerIPL.com. If they’re interested, we do a podcast called The Inventive Journey. I’ve done episodes on myself and those will be launching soon. It’s my journey. I’ve done a few different startups. Some of them have been small, others have been multimillion-dollar startups along with that. They can get that journey. They also can hear journeys of other inventors.

Being an entrepreneur or a startup can get lonely especially for the person on the top. Nobody gets the stresses you get. Nobody understands the pressures of making payroll, making sure that you have deadlines and you have money in the bank, and dealing with other people in that. The Inventive Journey gives that. Here are other people’s journeys along those lines, how they did it, what things they faced, and everything else. You can also check that out and that’s easy. You can either find it on YouTube under The Inventive Journey or it’s all posted on the website. Those are going to be the easiest ways to reach out.

Thank you for being on.

It’s my pleasure. It was always fun to talk. I love to share stories all about startups, businesses, how to protect them and grow them. It’s always fun to be on.

Important Links

• Devin Miller
• Patents.Google.com
• Devin@MillerIPL.com
• MillerIPL.com
• The Inventive Journey – Podcast
• YouTube – Miller IP Law

About Devin Miller

I just love startups! I established my own first startup while earning my Law & MBA degrees. Since then, I have set up several more startups and enjoyed every minute of it. I have a real passion for a new business model–the prospect of a business startup always makes my heart race!

I’m an entrepreneur who is also a patent and trademark attorney. I’ve obtained several degrees including a Law degree (JD) and a Masters in Business Administration. I even have degrees in Electrical Engineering and Mandarin Chinese.

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