Questions Answered by Walker Weitzel

Q: I have a peanut butter recipes. How do I protect my recipes so manufacturers don't steal it?

1 Answer | Asked in Consumer Law and Intellectual Property for Texas on
Answered on Jul 21, 2017
Walker Weitzel's answer
There are two ways to protect recipes: Patents and Trade Secrets.

Recipes can be patented, and the strength of the patent will depend on the novelty of the invention. I don't have a lot of info about your recipes, but my general inclination is that patenting is not the best means for protection in your case.

Your best protection, and the one most frequently employed for proprietary recipes, is trade secrecy law. For IP to be protected as a trade secret, you must take reasonable...

Q: Hello,I have a vested patent about a new product for watersports.I would like to sell my idea to this kind of companies

1 Answer | Asked in Patents (Intellectual Property) on
Answered on Jul 17, 2017
Walker Weitzel's answer
There are many options for selling and licensing patents. Although I do not have much information about your patent or the related product, it sounds as though this is an area of technology in which I would approach potential companies directly to work out a purchase or licensing agreement. The process will depend a lot on your specific patent and the related industry.

Q: Patent of cushioned drum stick handle by James Huber is an exact copy of my designs from 1995. What should I do?

1 Answer | Asked in Copyright and Patents (Intellectual Property) on
Answered on Jul 3, 2017
Walker Weitzel's answer
There are many important facts to this case that are not included in the question that a patent lawyer would want to ask, for example:

What patent specifically (patent number and expiration?)

Facts specific to your design and disclosure of said design, like did you ever market or sell it.

Other general background.

I would suggest scheduling a free consultation with a patent lawyer to determine whether you have any legal recourse.

Q: if someone already trademarked upper left apparel llc does that mean I can't make a company with upper left?

1 Answer | Asked in Copyright and Trademark for Washington on
Answered on Jul 3, 2017
Walker Weitzel's answer
Trademarks are specific to the type of goods being sold. If your company would not produce competing products with the existing mark, then you probably would not infringe their mark, and registration of your trademark may be possible. I would suggest contacting a trademark lawyer for a free initial consultation regarding some more specific facts regarding your case.

Q: My ex-husband has stolen my idea and has filed for a patent what can I do?

3 Answers | Asked in Patents (Intellectual Property) for Florida on
Answered on Jun 29, 2017
Walker Weitzel's answer
There are absolutely legal steps you can take. Filing for patent if you are not the true inventor is generally a wasted effort. It is not difficult to render such a patent unenforceable. There are many possible courses of action. One example would be to attempt to convince your ex-husband that it is in his best interest to correct the named inventor on the application. The idea would be to name you as an inventor, then to agree to assign the application to him for some agreed upon dollar...

Q: Can a non trademarked character be remixed and sold for profit?

1 Answer | Asked in Copyright, Intellectual Property and Trademark for Florida on
Answered on Jun 23, 2017
Walker Weitzel's answer
This would be a copyright issue. The case is also fact-specific, meaning that without more information, it will be tough to speculate about whether infringement is likely. If you would like to assert a copyright, you will need to register it. Copyright registration is straightforward, and can likely be done yourself, although many people also choose to have a lawyer do it for them. Once registered, you should talk to an copyright attorney. Copyright law can provide for lawyer fees, so it's a...

Q: Can I use X name if it's being used in another country(s)??

1 Answer | Asked in Trademark for California on
Answered on Jun 15, 2017
Walker Weitzel's answer
Trademarks are specific to product/service type and location. You establish the type of product/service by sales or by choosing the type during registration. You establish location either by sales or by registering in a given state or country. You would infringe Apple's trademark by using the name to sell electronics, among other things.

It is unclear whether your example is hypothetical or not, but there is an additional part of trademark law that would apply. Trademark dilution...

Q: I want to offer freelance software development services under the name "office 365 developer"

1 Answer | Asked in Intellectual Property and Trademark on
Answered on Jun 13, 2017
Walker Weitzel's answer
Trademark infringement is determined by the "likelihood of confusion" test. This test inquires whether a reasonable consumer is likely to be confused about the provenance of a given product or service. It seems there is a good chance that consumers would be confused about whether the service is being provided by Microsoft.

Q: I want to sell a product that looks similar to another.

2 Answers | Asked in Business Formation, Consumer Law, Products Liability and Intellectual Property on
Answered on Jun 27, 2017
Walker Weitzel's answer
There are two areas of IP that are relevant: trademark and patent. Trademark would apply if you are attempting to "pass off" the product as Apple's. The question is whether a reasonable consumer would be likely to be confused about the provenance of the product. If the source of the item is clear to consumers, then there is much less likelihood of confusion, and trademark infringement would be unlikely.

Apple generally gets patents on their designs as well. One of the biggest patent...

Q: What does Status 641--non-final action--mailed mean for a trademark?

1 Answer | Asked in Trademark for Colorado on
Answered on Jun 9, 2017
Walker Weitzel's answer
Unless you choose to handle this yourself, you will need a lawyer to handle the prosecution of your trademark application. Application prosecution is the process of responding to objections and rejections by the trademark office. A non-final action means that there is something about the application that needs to be addressed by you or your lawyer. Many lawyers (myself included) offer free initial consultations. I would recommend speaking with a lawyer to discuss the specifics of your case to...

Q: I have an idea to modify a patent. Should I contact the inventor/assignee?

1 Answer | Asked in Patents (Intellectual Property) for California on
Answered on Jun 1, 2017
Walker Weitzel's answer
There are two important relevant pieces of law here. First, you are able to patent an improvement on an existing patent. There is no need to ask permission of the underlying patent-holder to file for that patent. Second, a patent merely grants the right to exclude others from making, using, selling, or importing the patented invention. It does not necessarily grant the owner of a patent those rights, it only grants the ability to exclude others.

Therefore, you can patent an improvement...

Q: if I was to start a music label could I use the name Universal Digital Group or would that conflict with Universal music

2 Answers | Asked in Business Law, Copyright, Business Formation and Trademark for California on
Answered on May 24, 2017
Walker Weitzel's answer
The test for infringement under Trademark Law looks at the likelihood of confusion for an ordinary consumer. You would ask whether an ordinary consumer is likely to be confused over the provenance of a product or service. Trademarks are product-specific, which is why there can be a Klein Honda as well as a Klein bicycle brand without there being a likelihood of confusion. In your case, however, it seems as though you would be in the exact same product space, and it would be very likely that a...

Q: Would it be Illegal to sell a hockey jersey that does not have the NHL logo or the name Reebok anywhere on it?

1 Answer | Asked in Intellectual Property for Washington on
Answered on Apr 29, 2017
Walker Weitzel's answer
The key question in trademark law is whether there is a likelihood that a consumer would be confused about the source of the jersey. There are a bunch of parts of a jersey that might indicate its provenance, including the design, the team name, any logos, team colors, etcetera that could all be used to inform a consumer where the jersey came from. If the jersey looked exactly like a team jersey, but it was missing the Reebok and NHL logos, a consumer might still be confused about the source of...

Q: Would a current Land Patent from 1865, supersede the 1969 Clark, WA, code regulation regarding land use in a flood way ?

1 Answer | Asked in Contracts, Real Estate Law, Land Use & Zoning and Patents (Intellectual Property) for Washington on
Answered on Apr 25, 2017
Walker Weitzel's answer
A land patent is the highest proof of title over land. It is extremely authoritative. With that said, the laws of the jurisdiction will dictate your ability to use and develop the property. Ownership is only a piece of the puzzle. Your rights to improve the property are still subject to Oregon law.

Q: Is my idea for a fact compilation database protectable by patent, copyright or neither?

2 Answers | Asked in Business Law, Intellectual Property, Internet Law and Patents (Intellectual Property) for Texas on
Answered on May 22, 2017
Walker Weitzel's answer
Original code is protectable by copyright. The protection would be extremely limited, however. Copyright would not protect the function of the code, only the actual written expression. It is unlikely it would be worth pursuing.

The platform itself might be patentable. This is a question that requires a legal opinion and a fair degree of research in order to render a useful opinion. The questions would be whether the platform's base idea is novel and nonobvious in light of the existing...

Q: If two provisional patents are filed. Does the second have any rights if it was filed prior to disclosure of the first?

2 Answers | Asked in Patents (Intellectual Property) for Illinois on
Answered on Jun 2, 2017
Walker Weitzel's answer
I agree with Peter's answer to this one. I would like to add one important element that is often overlooked when considering the first-to-file question. Patents may or may not claim exactly the same thing. There is a huge amount of case law that informs patent lawyers on whether two inventions are the same, obvious in light of one another, or distinct, and whether that distinction would be patentable or not. Perhaps the first patent was filed, but there are material differences that would allow...

Q: Hello

2 Answers | Asked in Patents (Intellectual Property) on
Answered on Apr 6, 2017
Walker Weitzel's answer
The answer depends on your level of risk aversion. The safest route will be to have an attorney render a Freedom to Operate Opinion. A lawyer would do a thorough patent search to determine whether your method or end product infringe on any patents. Another approach would be to begin using your technique, and to respond if a patent owner comes to you asserting infringement. In this case, you would either need to come to an agreement with the owner or assert that you are not infringing (which...

Q: Can I patent a bread maker that makes loafs of bread in the shape of a US State?

1 Answer | Asked in Intellectual Property and Patents (Intellectual Property) for Texas on
Answered on Apr 6, 2017
Walker Weitzel's answer
The quick answer is that a bread maker that makes loaves of bread in the shape of the US is patentable subject matter. Unfortunately, the short answer is not very informative because what you really need to know is whether the invention is also both novel and nonobvious. This is where a patent search and opinion comes in. In order to determine whether it is novel and nonobvious, you would employ a professional to do a search to determine what prior art exists and to render an opinion on whether...

Q: As first to invent/first to file in '08, without attaining patent, what IP rights do I have? An OEM is using my IP.

1 Answer | Asked in Patents (Intellectual Property) for District of Columbia on
Answered on Apr 6, 2017
Walker Weitzel's answer
Unfortunately, your intellectual property rights vest when the patent issues. Filing an application establishes the date from which you own intellectual property if it eventually vests, but unless the patent issues, you will never establish ownership over the invention. The invention is now in the public domain, which means that it is available for any public person or entity to use.

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