Tuesday, January 8, 2008

Happy New Year!!! It's Technique Time!

Happy New Year!

After a much needed hiatus, we are back and blogging with a vengeance. We have a series already set to run every few days covering all sorts of requested topics and ones that are very relevant to current events! So try to keep up.....we are!

A Quick Reminder: If you haven't done so yet, you may want to register for the Craft & Hobby Show coming up in Anaheim, California February 9-13, 2008. There will be a great trade show and excellent seminars including one by our firm.

This one is for all of you who have ever wondered what can be done with a technique one develops.

In the Hobby & Craft or Do-It-Yourself Industry, techniques sell product. Let's face it, there may be formulation differences, but paint in the end is paint...something to cover and add color to a surface. HOWEVER, the way the paint goes on a surface, what it looks like when it dries, the color variety, etc. comes from the techniques used.

There are two types of techniques - common/public domain and new/proprietary. Common or public domain techniques are those that are well known by the public and used often. These would be using a paint brush and dipping it directly into paint or rubbing a rubber stamp over an ink pad. However, new or proprietary techniques are those that either expand on the common techniques or are brand new. A great example of an expansion of a technique would be rubbing a rubber stamp across an ink pad and then misting the stamp lightly with water before placing it on the surface to create a watercolor effect.

As creative folk, new techniques are created on a daily basis. The key questions are....HOW DO YOU PROTECT A TECHNIQUE? AND CAN YOU USE SOMEONE ELSE'S TECHNIQUE?


The short answer...A PATENT. For the purposes of this blog, we will only focus on a Utility Patent. Utility Patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement. A technique is a process...therefore...a patent is in order.

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.

The right conferred by the patent grant is the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

Techniques are generally covered by patents. Copyright or trademark laws would cover the final look or a new given to the technique. Therefore, whenever a new technique is created, if the creator truly wishes to protect it, patent law applies. The next blog in this series will look at what is necessary to apply for a patent.


This is a loaded question...truly! If there is a common technique...then absolutely. The technique is in the public domain, and can be used.If not, the world wouldn't be able to go around. However, the new technique is a different issue. If the technique is not covered by patent, then technically...it can be used. HOWEVER, there are several cautions. Patent Law is complicated and whether a technique is patentable or eligible for patent protection is a long process. It is also very difficult to search the patent records to determine if there is a patent on a technique. That is why the area of patent law is a highly specialized field of law.

Some artists and others believe that it is acceptable to copy a technique as long as credit is given. While giving credit is nice, that does not excuse copying a technique if it is protected. Since using a technique is a difficult question to answer and truly a "case by case" issue, these are some general guidelines:

1) Is the technique covered under a patent?
2) Who created the technique and can you obtain permission?
3) Where did you learn the technique - could it be covered under a confidentiality agreement or trade secret?
4) Does the technique create a finished product that would be covered under copyright or trademark protection?

It is also VERY important to point out that many times the instructions to a technique are covered under copyright protection. Therefore, the technique may or may not be protected, but the writing may be protected.

The copying of a technique is a risky option, just like copying in general. Therefore, the "Golden Rule of Intellectual Property" applies - "When in doubt, leave it out!"

This is a very complicated subject and we have truly only touched a small amount of the surface. However, your comments and questions are more than welcome. Please leave them in the comments section and I will try my best to answer them for everyone to see.

Here's to a great new year of creativity!
Create with Your Heart and Your Head!


studio3d said...

I guess the dilemma for me is justifying taking a class or workshop or buying a DVD of techniques and projects if the process is protected from duplication. I have learned all this stuff but I'm not supposed to do it?

Tammy L. Browning-Smith, J.D., LL.M said...

You hit on an important question! Most of the time reproducing the technique for PERSONAL use is not a problem. For lack of a better term, there is an "implied" license to use the technique for your personal use. The key to using techniques from DVDs and the like is knowing if it is claimed as protected. Sometimes, an email to the creator may solve the mystery. In the end...it is ALWAYS best to explore and try new things. Don't be afraid!

Margot Potter said...

See this is the tricky thing, I make books and I want folks who read them to make my projects. I don't want them though to teach them as classes, submit them to magazines for publication or to sell them as finished goods. The problem with jewelry making is, I think, everyone who does it wants to sell their designs. I have people tell me constantly they're selling my designs to people or they're teaching them as classes in their stores.

It's a fine line!

Thanks for this blog, Tammy. It's such a gift!


Tammy L. Browning-Smith, J.D., LL.M said...

Thanks Margot! Something that designers forget to include in many of their books is a "license" or usage statement. This tells the reader/purchaser right up front what one can and cannot do with the design or technique. The Decorative Painting Industry uses it alot and the rubber stamp industry attempts to address it with an "angel policy."

Thanks for your comments and inspiration!


Valonda L. said...

This is a dilemma I have wondered about a lot since I teach classes. I try to think up my own techniques, but how do I really know that what I have created as my own has not already been done by someone else. There are a lot of minds in the world. Also, how do you know if a technique is able to be used in a class? Can it be used if I am not claiming it is mine? Maybe there aren't any real answers, and if you are an innovator you may eventually have something that you thought of used by someone else for their profit. I don't know? I was just thinking of that the other day when I created a couple of new techniques (at least I have never seen them anywhere else). I would love to share them on my blog, but I also want to put them in a class and don't want someone else taking them before I get a chance to put them in a class myself. Answers?
Valonda L.

Ketutar said...

I'm sorry but this is insane!

One shouldn't be able to patent A HANDCRAFTING TECHNIQUE!

Someone, somewhere is bound to have done the same, and because one wasn't greedy, arrogant and egotistical, (or because one didn't think someone somewhere patents techniques) one didn't patent the "new invention" aka accident/ emergengy problem solution/serendibity and for that one MAY NOT USE IT EVER AGAIN?!?!

Why set such boundaries on creativity?

Why should I consider every time before I "invent" new uses to old tools, that perhaps some xxxxxxx somewhere has patented that specific technique and I am breaking the law and in worst case I have to pay a lot of money and loose the right to my work or what ever...

That's just wrong.
Bad, bad, bad.

Tammy L. Browning-Smith, J.D., LL.M said...

Valonda -

Thank you for your comments and raising the questions of many...of which...unfortunately...there are no hard and fast answers. Many techniques available today are truly those that have been around for some time and simply renamed, tweeked, etc. I know of VERY VERY few technique patents out there in our industry for techniques that are taught in classes, etc. (Product Manufacturers are a different story, the processes they use for their products are usually patented or trade secrets).

I didn't write the blog to discourage anyone...far from it. Knowledge is power. The real key is to think responsibly. I would guess that 98% of the time, most people are just fine.

Hang in there and keep on creating! You are what are industry is all about!

Tammy L. Browning-Smith, J.D., LL.M said...

Greetings Ketutar!

While I can agree with you, I also disagree.

You are absolutely correct that most of the time there are only so many ways of doing something and someone, somewhere has already come up with it and didn't patent it.

I notice your specificity when it comes to using "Handcrafted" for technique. Sometimes it is the handcrafted techniques that make the world go round and make it profitable for someone to keep creating new products.

I can agree (as a crafter, artist, hobbyist, etc) with a frustration that if one is publicizing or teaching the technique, then why in the world would someone want it patented. If the artist is afraid of someone stealing the technique - DON"T PUBLICIZE IT OR TEACH IT! If the artist is afraid someone is going to steal their instructions, copyright them.

Sometimes Intellectual Property (patents, trademarks, copyrights) can be downright frustrating and challenging. The good news is that is usually works out in the end.

Thanks again for your comments!

Delia said...

"If the artist is afraid of someone stealing the technique - DON"T PUBLICIZE IT OR TEACH IT!"


DebbyD said...

Shouldn't crafts be about fun and sharing? There are so many designers who make money out of their ability to craft. Most techniques they use go way back, sometimes even before our time. I am sorry, but I do not think craft techniques should be patented. This seems like one of those 'we don't know what else to patent' anymore, so we'll go for the craft industry. What will be the next thing?????

Tammy L. Browning-Smith, J.D., LL.M said...

Debbyd -

Sometimes it is rough being the messenger! You are absolutely correct, most of the time our techniques in the hobby & craft industry come from a "time honored" method. The frustration right now that we are facing is the US Patent Office is terribly understaffed and does not understand our industry at all. Therefore, things are getting through that shouldn't and things that should are not.
There is a fine balance between protecting something new to encourage others to create and stiffling our business.
Thanks for bringing up the excellent point and reading!

The Fine Print!

Since there may be legal discussions going on...there must be a disclaimer!

This blog is for educational and information purposes only. It does not constitute the practice of law. The attorney who writes this blog is only licensed in the State of Ohio and Michigan. There is NO attorney-client relationship of any type. You must sign appropriate documenation and have appropriate new client counseling to be a client of Browning-Smith, P.C. Each and every situation is different and all readers must seek his or her own legal counsel. The information on this blog is not guaranteed for any purposes nor is it to be relied on.