Protect It or Lose It | Austin Bonderer

PROFITABLE TALKS...

In this episode of Profitable Creative, host Christian Brim interviews Austin Bonderer, an intellectual property patent attorney with over 26 years of experience. They discuss the nuances of intellectual property law, including patents, trademarks, and copyrights, and the importance of protecting one's creative work. Austin shares insights on the patent application process, the significance of trademarks, and the potential consequences of failing to secure intellectual property rights. The conversation also touches on international considerations, the concept of fair use, and practical advice for business owners navigating the complexities of IP law.

PROFITABLE TAKEAWAYS...

• Intellectual property law is nuanced and complex.
• Each patent examiner operates like their own office.
• Obviousness is a key factor in patentability.
• Trademarks are established as soon as a product is sold.
• Federal trademark registration offers significant legal benefits.
• Costs for trademark registration can vary widely.
• International trademark protections can be secured through the Madrid Protocol.
• Failing to protect IP can lead to significant business losses.
• Fair use allows limited use of copyrighted material under certain conditions.
• Copyright law applies to the expression of ideas, not the ideas themselves.

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Transcript

Christian Brim (00:01.304)
Welcome to another edition of the Profitable Creative, the only place on the interwebs where you will learn how to turn your passion into profit. I am your host, Christian Brim. Special shout out to our one listener in Oxford, Mississippi, home of the Fighting Rebels. Welcome to the CFP. Good luck this weekend. No, they don't play this weekend, do they? Anyway, thanks for listening. Joining me today, Austin Bonderer.

not to be confused with James Federer. Roger, I knew the name but like, okay, anyway, I screwed that up. Austin, welcome to the show.

Austin Bonderer (00:34.836)
Roger, if ever.

Thanks for having me.

Christian Brim (00:44.002)
So are you anywhere near Oxford?

Austin Bonderer (00:46.396)
I am not. I have practiced in California and I have offices in California and Fairhope. I'm currently in Fairhope at the moment, Alabama and then Tampa, Florida.

Christian Brim (01:00.962)
Beautiful. were discussing before we started the show that he was from Mississippi and I was like, well, that's odd because that's our shout out today. So Austin, you are an intellectual property patent attorney. how long have you been doing this? Give us or give us your CV.

Austin Bonderer (01:19.964)
basically, as soon as I got out of engineering school, I went to go work for the patent office as a patent examiner. So I worked on that side of it. And then basically while working there, went to law school at night and then became a patent attorney on the outside of the patent office.

Christian Brim (01:37.964)
And so that means you've been doing this for how long?

Austin Bonderer (01:40.768)
since 99 so 26 years i guess coming on yeah more than 26 years yeah i don't like saying that

Christian Brim (01:43.119)
Long enough. Okay, so is this is a little insider ball here. Is the USPTO similar to other federal bureaucracies where the examiner, as you were doing, has a lot of discretion in how they apply the law?

Austin Bonderer (02:12.8)
yeah.

Christian Brim (02:12.896)
I ask that coming from the IRS side of things and like, you know, when you deal with the IRS, it really is much more subjective than you would expect or maybe you'd like it to be.

Austin Bonderer (02:27.584)
I mean, well, I mean, so first thing I tell clients is, you know, while there's one US patent office, there's really like 8,500 of them because each patent examiner is able is their own little patent office. And once you become a primary patent examiner, which means you have X number of years of experience, then you go through this thing called the program and, uh, and you know, they, tear apart your work for a year. And if you prove yourself, then you almost get no, uh,

Christian Brim (02:39.874)
Mm-hmm.

Austin Bonderer (02:56.978)
No one can overrule you except the trial board. Not even your supervisor, generally.

Christian Brim (03:00.907)
Okay.

And so it's kind of like just the way they apply the law as the way they understand it. And so there's more nuance than, or no.

Austin Bonderer (03:14.756)
It didn't mean one of our biggest arguments between them is you can't patent something that's, while it's not the exact same as something that's found in the prior art, it can't be considered obvious. So yes, you and I could, mean, right now you and I could have a discussion about what's obvious and chances are we would not agree. yeah.

Christian Brim (03:25.346)
Hmm, obvious to who.

Christian Brim (03:32.229)
Right, yeah. You're living in a rock? do you mean obvious? Okay, so you use the word art there and that's interesting to me. Is that a legal term that is used?

Austin Bonderer (03:51.719)
Yes, but everyone's familiar with it. mean, when you hear the term state of the art, it's the same thing. It's the all the knowledge and information that's out there. So when you file a patent application, anything that existed before that filing date is considered prior art.

Christian Brim (03:56.141)
Mm-hmm.

Christian Brim (04:09.428)
Okay, interesting that they use that term. Okay, so let me ask you this. far as my understanding is that all patent attorneys have some type of technical background. You have engineering. Is that, where is that applied, that requirement? Like to be able to be certified to work with the patent office or like, is that a, explain it to me.

Austin Bonderer (04:37.298)
Exactly. So basically to be an attorney, you have to pass a state bar. In order to be a patent attorney, you have to pass a state bar and then you have to have passed or be admitted to the patent bar. Most people have to pass the patent bar to be admitted. There is a kind of a loophole is that if you work at the patent office for more than five years, if you could go out to the outside, they just admit you because they believe that you're qualified at this point in time.

Christian Brim (04:42.755)
Mm-hmm.

Austin Bonderer (05:07.284)
to pass that test.

Christian Brim (05:10.67)
Okay, so is there a similar requirement for other intellectual property?

Austin Bonderer (05:17.914)
No, it's the only one that requires that. So any attorney can do trademarks. Any attorney can do copyrights. So we call those the softer IPs. Copyrights tend to generally be worked with when it comes to entertainment lawyers, because they're dealing with music, books, writings and this kind of stuff. I'm a little familiar with that, but it's very easy to file for copyright. You just kind of register it with the Library of Congress.

Christian Brim (05:32.365)
Mm-hmm.

Austin Bonderer (05:43.327)
You know, people, it's fairly easy. People are able to do it themselves much easier than they would be able to file a patent. A trademark falls in between there. A lot of patent attorneys do trademarks because it is the Patent and Trademark Office. But there are also lot of attorneys out there who do not have a technical background who are extremely qualified in doing trademark law and obtaining registered registration for your trademarks.

with the trademark office. Now that is one misconception I have to explain a lot is that as soon as you sell something, service or product, and it has a name to it, you have a trademark. The government doesn't give you a trademark. What happens is you want to get it registered because of all the legal benefits that you get when a trademark is registered, federally registered with the trademark office.

Christian Brim (06:35.616)
And some of those benefits would be.

Austin Bonderer (06:39.898)
Well, it's so you don't have the gene. So your once you have a trademark, you start to be protected under common law. And one of the things that we suggest is that people use that little team that you may have seen in usage. If you don't have a registration, but you're claiming a trademark, that puts everyone on notice that you are actually claiming a trademark. But with common law, you have things like geographic constraints, like say you were only in the

the, you know, the, it's a little different with the internet now, but say you have a thriving burger chain on the West coast, maybe in and out would be an example or something. You know, exactly. So I miss it much. So I haven't had one in a while. So, one of the things with that is that, you know, if someone opened up a restaurant in, say New York, and this is when they were, you know, we're talking 20 years ago, right?

Christian Brim (07:16.352)
In-N-Out Burger, that was the first thing that came to my mind.

Christian Brim (07:35.99)
Right. Ancient days. Ancient days. Yes.

Austin Bonderer (07:36.097)
You know, in New York, someone opened up a burger restaurant. I'm sorry? Yeah, you know, before the internet, right? So if they opened up one in New York City, in and out in California, if it didn't have a federal registration, it was generally localized, and only people knew it in that general geographic area, there was no likelihood of confusion with the company that started in New York. But the people in New York started gaining rights.

Christian Brim (07:58.542)
Right.

Austin Bonderer (08:02.974)
So they can't just also force them out of business if they grow. So you end up having to get stuck with them. So once you get a federal registration, that would prevent that from happening. So even if you're just, you know, like a small regional company and you get a federal registration, you prevent anyone from using that name or that logo or whatever across the entire United States.

Christian Brim (08:29.56)
So as a practical matter, it's best to be proactive in protecting your intellectual property. mean, obviously there's a cost benefit. And I'm assuming obtaining a patent is much more expensive than getting a trademark registered. What can someone expect to spend? And assuming that

Austin Bonderer (08:30.464)
Thank

Austin Bonderer (08:37.567)
Thanks.

Christian Brim (08:57.886)
There's nobody else out there contesting what you're doing. So in other words, you've got a patent that's not a Dyson vacuum cleaner, and you're not trying to use Dyson and getting into protesting something that's already there. How much are we talking about budgeting?

Austin Bonderer (09:09.184)
All

Austin Bonderer (09:19.282)
I mean, a good range you're generally talking about 10 to 15 would be a good estimate, you know, but that can be spread out over like three to four years. So it's not all upfront. So basically what happens for the patent, because the trademark, if there's no issue going through, generally, you could see something within a year. it sometimes, you know, you're generally looking at, you know, and if it's only one class, I'll explain that in second, you're generally looking at, you know, possibly, you know,

Christian Brim (09:29.826)
for a patent or a trademark? Okay.

Austin Bonderer (09:48.897)
$1,500 to $2,000 to $2,500, somewhere in that area, if there's no hiccups. And what we mean by class is kind of like, say you had Acme Oil Company and Acme Seafood Company. You can actually have same names in use, but they're not in the same class because people aren't generally likely to confuse an oil company with a seafood company. I mean, I don't know, maybe they would with all the oil spills.

But you know what I'm saying, that's one way they kind of delineate the items is that you are registered generally within a class. And the more classes that you're

Christian Brim (10:29.4)
So the class would be more, I'm sorry, so to clarify, the class is more like akin to an industry. So like Delta Airlines versus Delta Faucets.

Austin Bonderer (10:33.684)
So,

Austin Bonderer (10:43.708)
Exactly. Perfect. Yes. You can definitely have that. In fact, one of the biggest things forever was Nissan was trying to sue. If you ever went, I don't know if they still have it, but if you went Nissan.com in the United States, it pull up a company and not the car company.

Christian Brim (10:46.093)
Okay.

Christian Brim (11:01.792)
Yes, because it was like Nissan USA.com for a long time. Yeah. Okay. So that's interesting. So let's, let's, go pull it back another 10,000 feet. You're only talking about, we've only talked about federal for, for our purposes. Are there similar legal mechanisms in other countries?

Austin Bonderer (11:05.147)
Yeah, that's what they had to end up coming up with. Yeah.

Austin Bonderer (11:26.208)
Thanks.

Austin Bonderer (11:31.389)
Totally. mean, so it's actually kind of nice that generally we can file. So if we file for a trademark in the United States, if we file within six months, we can file to register under the Madrid Protocol in a bunch of different member states, Brazil, Europe, Australia, you know, these kind of things all over the place. You have to pay, but you generally go ahead and get your foot in the door and you're trying to.

Christian Brim (11:54.273)
Right.

Austin Bonderer (11:58.729)
secure the naming rights in those industries. You know, a lot of things with trademarks, you know, you mentioned the airline, you know, one of my favorite things to tell people is American Airlines does not have a registered trademark.

Christian Brim (12:16.778)
Interesting.

Austin Bonderer (12:17.76)
Yes, so if you look at them because one of the things you can't register as a trademark I mean granted you can't open up an airline and call it American Airlines But you can't prevent Delta from saying they are an American airline

Christian Brim (12:32.866)
Fair. Okay. Because they are.

Austin Bonderer (12:33.374)
Because so when you trademark something, right, when you trademark something, you generally take those words out of the lexicon. So others can't use it for likelihood of confusion. So. American Airlines is very descriptive of what it is, so you will see they never have an R with a circle around them. I can only assume is because it's so descriptive that they can't get it. Now they may be on the second, but you can't open up an airline, says American Airlines either.

Christian Brim (12:41.835)
Right.

Austin Bonderer (13:02.496)
You see what I'm saying? They have some rights in the name because at the end of the day, trademarks is not for the owner, it's for the public. It's for the protection of the public. And now, I don't know if you remember, do you ever remember watching, was it Coming to America? Yeah, and McDowell's was the family restaurant. McDonald's kept coming after though. It's because

Christian Brim (13:22.112)
yeah, great movie, Eddie Murphy. McDowell's, yes.

Christian Brim (13:30.071)
Right.

Austin Bonderer (13:31.38)
People are likely to be confused. driving down the street. They see something that looks like golden arches. They're going to run in and boom, they may have been hoodwinked into buying something they didn't think they were buying. So we use trademarks as an identification of source of goods. So we in commerce can make split decisions about quality and things that we want to spend money on.

Christian Brim (13:52.975)
Okay, so you answered the international question. Let's zoom down in. Is there any mechanism at the state levels or state levels in America where you have to do something beyond the federal?

Austin Bonderer (14:08.96)
Right. So if you have the federal, you're protected. You can file for state trademarks. It's not something that a lot of people do. So understand to get a federal registration, you have to have interstate commerce. If you were just totally in California, even though it's, you would say 25 percent of the commerce or 20 percent of the commerce of United States, you still can't get a registered trademark federally registered.

Christian Brim (14:12.206)
Okay.

Christian Brim (14:23.862)
Okay.

Austin Bonderer (14:37.248)
Now you can apply for a California based trademark that is registered in California. Generally, you register your company name and that's protected, but you can also make it a step further and try to get a trademark registration through California. That will not give you the R with the circle at that point.

Christian Brim (15:00.366)
Okay, so you've got a gray beard like I do, so you have lots of experience. Where do you see, across any intellectual property, where do people, how has this worked out poorly for them when they didn't protect their intellectual property? Like, give us some examples of how that went bad.

Austin Bonderer (15:23.744)
Okay, so, has some people come to my office one time and they were in a panic. they had this, product that they made. They went on Shark Tank. Did pretty well, but the problem was that their supplier in China saw what they were doing and saw how popular they were doing and saw, they basically gave the supplier a list of all their, like customers, like these big stores. So what the supplier did was just say,

Christian Brim (15:50.126)
Hmm

Austin Bonderer (15:53.077)
Why don't we just contact those stores ourselves? And they ended up. Yes. And they didn't have to protect. were out. mean, they may have been, I mean, if they did their contracts properly, you know, if they said, Hey, we're manufactured with you. You cannot contact our customers. You can't do all this stuff. They might have been able to sue under contract law, but.

Christian Brim (15:57.365)
sell it and take that profit. And so they were done. There was nothing you could do at that point.

Austin Bonderer (16:21.024)
Then the question is, how do you enforce that overseas? You know, where you're forcing that in China, you're forcing that here. You know, you would have to draft your contracts properly. And I highly suggest if you're manufacturing products, you do have an attorney look at those contracts. But a lot of times those manufacturers aren't messing with you unless you've signed their contracts. Because unless you are coming in with a large amount of money and orders,

Christian Brim (16:24.289)
Yeah.

Austin Bonderer (16:47.264)
They're like, you know, this is our normal stuff. We're not going to pay an attorney to review every single person who comes in to build something. So you're kind of stuck. Now, a patent might be an easier way of doing that. If you don't see yourself right off the bat, you know, supplying them with a bunch of orders because then they're willing to bend what they normally do for you.

Christian Brim (17:10.232)
So, okay, let's carry this thought exercise a little further. If you had a patent and you had an overseas manufacturer and they're violating your patent, but they're doing it in another country, but they're still trying to sell that product into the United States, does that patent protect them? I mean, would you be able to say no?

Austin Bonderer (17:16.224)
Okay.

Austin Bonderer (17:22.048)
you

Christian Brim (17:39.166)
You can't sell this thing into the United States and how in the hell do you enforce that?

Austin Bonderer (17:45.537)
So if you, okay, so all patents are local. So basically US patent protects you in the United States, doesn't protect you in the rest of the world. So in that instance, you have a US patent, your manufacturer decides to sell all over the world. You can't stop them from doing that. But what you can do is, you know, sue them here in the United States under your patent, if they violate your claims. Hopefully you have some kind of contractual, you know, thing that you did with them. You could sue them under that.

It's actually easier to sue under contract than as patents. Patents can be very difficult to sue under. And then the other thing is you can get orders through the FTC or with customs and you can basically get things stopped at the ports if you know infringing items are coming over and they know to look out for them, they will seize them at the port and say that these are understood to be infringing products.

Christian Brim (18:27.565)
Mm-hmm.

Christian Brim (18:41.006)
Does that actually happen? That sounds complicated. Okay.

Austin Bonderer (18:43.134)
Yeah No, I mean it's barely happened. I mean, it's a lot easier when it's a bunch of louis vuitton bags And that's a trademark infringement a source of good, you know knockoffs and that's trademark law But you know the same principle applies they if it's violating, you know, intellectual property rights of people, know law, you know Patent holders or property holders the government will try and stop it. But you know

Christian Brim (18:50.125)
Yeah.

Austin Bonderer (19:08.409)
the sheer amount of things that come across in the containers, you know, it is difficult.

Christian Brim (19:15.04)
Yeah. And, and I'm just thinking about what I've seen in the marketplace, you know, where, you have a successful product and there's always knockoffs and they may be, you know, us knockoffs. don't necessarily have to be overseas knockoffs. And I guess my question is, is that would the proper legal planning, including patent application.

help those businesses protect or, or not in practical and practical terms.

Austin Bonderer (19:52.241)
Well, right. Well, one of the practical terms I tell all my clients is that when you come out with a product and you have a patented product and it looks like it's doing well, you should be working on your own knockoff. You should be trying to catch both spaces. And then and then hopefully you box everyone out. But, you know, there are people who are willing to pay the high price or people willing to pay the low price. You might as well capture all of it.

Christian Brim (20:05.678)
Mmm.

That's interesting.

Christian Brim (20:18.732)
That's a brilliant idea. That is brilliant. Okay. So, go ahead.

Austin Bonderer (20:20.84)
Yeah. Yeah. but yes, I mean, you just use the law, you sue them. Amazon's very responsive to, Hey, here's my patent. You know, they actually have programs in place where you, you, you, you contest, say, Hey, this is violating my patent. And then you basically challenge them to an Amazon program where they have a qualified patent attorney look at both sides. You know, there's very strict rules. And if they find that's infringing, they take it off.

and you're able to do that. So at least it's a lot easier to get something thrown off the biggest seller in the United States than it is go through the courts.

Christian Brim (21:00.812)
Yeah, I was thinking, read somewhere recently Amazon was having trouble because some famous author, and I don't remember who it was, who had an upcoming book, somebody came in and started selling the book before it had been published. Obviously it wasn't the same book, but you know, and they, it had slipped through Amazon's, know, guards.

And they were like, well, we'll do better next time. But you know, the damage is done. I am curious. like URLs, IP addresses, those aren't subject to patent or trademark law, correct? Or trademark.

Austin Bonderer (21:49.537)
Kind of, okay. There wasn't, I don't know if you remember at the time, there was this thing called cyber squatting. And basically, you know, when the internet first started, know, smart people were like, I'm going to register mcdonalds.com before McDonald's even knows about the internet. And then when they want to use it, they're going to pay me a lot of money. So eventually the government got upset with this and passed the cyber squatting act. I think it was in 98 or 97. I'm not exactly sure. Long time ago. But basically the premise is if you have a trade,

Christian Brim (21:55.501)
Mm-hmm.

Austin Bonderer (22:18.868)
Don't quote me on this. It's been so long since I know the elements. It's basically like if you had, if you were sitting on someone's trademarked name and you were not selling the product and you were trying to make money off of it and this kind of stuff, they could cause the international body to seize that website from you.

Christian Brim (22:21.154)
Yeah.

Christian Brim (22:37.326)
Yeah, because the, I don't remember what organization regulates that, but it is not domiciled in the United States. Because I know when I published my book, I went and looked and somebody had profitfirstforkreatives.com already registered and they were non-responsive in trying to buy it.

Austin Bonderer (22:46.122)
starts with an I. I remember that one.

It used to be.

Christian Brim (23:06.586)
so I just replaced FOR with the number four and went with it because it wasn't worth the hassle and you know, blah, blah, blah. but I'm just wondering, do you run into any of that where people are trying to enforce that and get, get a domain for a trademark that they own?

Austin Bonderer (23:30.528)
That is not something I've worked with. I'm sure there are trademarks attorneys that do it. I think most people, unless they're a major corporation, just kind of do what you did and like, just find a workaround. Cause you're like, I'm not going to reward this person. And then you can set up a tickler or a tracker and you know, Hey, when this thing comes on the market, it comes free the day, you know, the person does it. Then you can try and grab it. But, um, you know, that's

Christian Brim (23:33.229)
Okay.

Christian Brim (23:41.996)
Yeah.

Austin Bonderer (23:56.353)
I'm sure there are people out there who use that law. I just don't I haven't heard too much about it in my practice

Christian Brim (24:02.902)
Yeah, it's kind of like I tell my attorney who's not an IP lawyer, he's just a general counsel kind of lawyer, but you know, it's, and he kind of laments the state of the legal profession in the United States that like a lot of lawyers, especially like ones he hires as employees, it's like there's the law and then there's the application and the economics of law.

like you may be right, but you're it doesn't make sense for you to go down that legal path because of the money involved and the time involved. Do you encounter that? I assume.

Austin Bonderer (24:47.488)
Well, yes, I mean, we do that in the trademark as well. So when you file for a trademark, it goes through the examining process. And what happens is the examiner is like, OK, we're OK with this. Then it gets sent out for what's called an opposition period. And during that time, someone from the public can file an opposition if they have a trademark or a right or something that's very similar or exactly like your name. They say, we're first. We have the superior right.

You cannot issue this and then you can go to basically a trial with subpoenas and discovery and all this stuff. You know, a lot of people are just going to be like, we're not married to the name at this point. We just started. We can rebrand cheaper than, you know, that's why I tell them like you're, you're going to spend more money on this. You know, when you start out, cash is king. Use that money. You know, if you really want to spend that money, spend it on advertising your new idea.

Christian Brim (25:37.185)
Right.

Austin Bonderer (25:43.807)
Or your new name. So, you know, one of the things I tell my clients is, you know, say that they're like, Hey, we're about to launch. got, got, we're to launch in about, you know, eight months, nine months. like, pick three names and let's file intent to use on those to see which ones get through. all three do. And then you can pick your favorite.

Christian Brim (25:59.822)
Mmm.

Austin Bonderer (26:09.034)
But if one happens to fall or two happens to fall, then you at least might have one that you can launch with.

Christian Brim (26:15.724)
Okay, I'm going to branch out in this, the area of copyright. And if you don't feel qualified to answer, you don't have to. But, you nowadays there's obviously AI and a lot of stuff that is out there on the internet is stolen. What's the practical

Austin Bonderer (26:17.375)
Thanks.

Christian Brim (26:45.75)
need for someone to copyright say the copy on their website? You know, regardless of their industry, regardless of their business, you know, it is, does it make sense to get a copyright on your content?

Austin Bonderer (27:03.636)
Well, technically you already have a copyright on your content. So the way it works in the United States, you don't have to file for copyright for every time you write a new article. If you write an article, that's your copyright. That's your written word. They can't copy verbatim, but you can't protect the information they're in. And this is where the AI goes back and forth is, yes, this is an automated scraping of the Internet, repackaging it and putting it out there. This isn't like an amalgam site, you know, like you remember

Christian Brim (27:07.117)
Okay.

Christian Brim (27:15.394)
Mm-hmm.

Christian Brim (27:19.384)
Okay.

Austin Bonderer (27:33.025)
the dredge reports and this kind of stuff people are upset with because they were literally making money by just directing people to sites they were like we curiate what you think you might be interested in but you go to the site we could have cut but you know you've made all the content this is a little different this is i mean i mean if you really think about it some person does the same thing half the time they read articles and they spit it back out and they do all you know

Christian Brim (27:34.806)
Right.

Christian Brim (27:40.269)
Right?

Christian Brim (27:48.003)
Right.

Christian Brim (27:56.258)
Mm-hmm.

Austin Bonderer (28:01.088)
This is how they come up with their own ideas or, you know, some people say there's very few original ideas out there. It's just regurgitation and repackaging and things they've already heard.

Christian Brim (28:12.866)
That's fair. So, so explain. I've, I've been told there's a certain term called fair use that, that allows you to use some content, you know, even completely ripped off, like video or audio. Like I'm going to, I'm going to take this copyrighted stuff and I'm going to use it under fair use. I I'm, I'm free and clear. So.

Explain that concept to us.

Austin Bonderer (28:44.58)
Well, I mean, I remember the biggest I was a kid at the time when they when they went to the Supreme Court, but the ones who pushed this was to live crew versus Roy Orbison. I don't know if you remember that one. Yep. Yes, it was the one it was pretty woman. They sampled it and they basically did a big kind of remake of it and Roy Orbison is not happy about it because it was very crude and.

Christian Brim (28:55.134)
I did not know that. do remember both those artists, but I did not know that they were involved.

Christian Brim (29:04.942)
Okay.

Austin Bonderer (29:11.936)
Lude and all this other kind of stuff. Totally different. you know, I have to say as a kid, I was like, you know, like this, but that being said, the Court basically side with Two Life Cruise saying, you know, we can't stifle art. So you're able to use a certain amount of copyrighted, direct copyright of items, you know, as fair use. So I think with, you know, with music and sampling, you're certain

Christian Brim (29:13.698)
Completely different genres.

Austin Bonderer (29:41.761)
amount of bars or time or something like that that you can use with it that's considered fair use. But I also think what they've ended up doing is that there's some kind of association. It's kind of like antitrust laws. They have some kind of union representing all the songwriters. They get money if they get sampled. They get money if they were like an artist on the song. They get money if they were the writer. They get money. It all depends on that breakdown. But

I think that's kind of the user, but fair use means you're allowed to pull certain amount of copyrighted material as long as it's not the whole substance of your, of whatever your, art you're producing or what you're writing.

Christian Brim (30:26.232)
Yeah, I think the example was I was talking to a movie producer and I think he, was a documentary that he had written and a part of it was filmed inside the car and on the radio, some Beatles song came on or something. And like that was, that was okay. That was fair use. Had he just, played the Beatles album Beatles white album on his documentary in its entirety. That's not.

Austin Bonderer (30:33.152)
Please.

Christian Brim (30:55.886)
Is that a gross example?

Austin Bonderer (30:59.316)
Well, I mean, no, that's, that's kind of my, but it's, it's gotta be limited. Like you couldn't just put an hour worth of interview and some, you know, music's on the background. There's a limited amount of time that you can use. an interesting story I was reading about is that there was this, they call them public auditors. go out and they just record police all the time. And this one police officer knew that all the algorithms were going to prevent certain songs from being uploaded to the internet.

Christian Brim (31:20.026)
yeah.

Austin Bonderer (31:29.108)
So he would Blair like Britney Spears or Taylor Swift or some of these artists where YouTube is on it like this, like they are just on top of it, getting it off or moving it content because they have been threatened to be sued by these large artists. So they were using that to basically prevent these items from being uploaded.

Christian Brim (31:49.07)
That's fascinating. That's brilliant. That's brilliant.

Austin Bonderer (31:51.68)
Using the technology filters to keep yourself offline.

Christian Brim (31:54.433)
So.

Absolutely. So a couple of final questions. If I were, if I'm a business owner, what do I need to be on the lookout for to proactively protect myself either from being sued or from my company being damaged when it comes to intellectual property? Like what's the most common thing that you see where people like

I wish you'd talked to me six months ago or a year ago. We could have kept this from being a problem.

Austin Bonderer (32:32.628)
Well, I mean, a lot of times what you're going to get is a cease and desist. And that's kind of you might lose some money by stopping what you're doing or this or that. Generally, we try to do if you want to come up with a new name for a product or business, talk to attorney, let's do a trademark search, see if you can eventually get that registered federally. When it comes to patents, we can do

Freedom to operate searches to see if there's something out there. But understand, no search is 100%. It's an art, not a science. People are out there doing it. The search that they do on Tuesday with the results would be different than if they did it on a Wednesday. It's just the nature of the business. You hope that the core of what they find is very similar, but you might pick something different in there because when you're dealing with inventions or products,

There's a lot of parts and you might be more focused on this part on the left than you are on the right. It might change day to day. That's why these searches are never the same to worse. You know, we're stuck with, you know, time and scope. We're not going to search all over the world. I mean, we can, but that's going to cost hundreds of thousands of dollars. So I tell people it's kind of like an insurance policy. You know, we do the search, we hedge the risk that you're not going to be in trouble later.

Christian Brim (33:41.866)
Right.

Christian Brim (33:47.726)
Mm.

Austin Bonderer (33:52.693)
Two, if you show the government that you, you know, if you ever got sued and you showed them that, we did a prior search, we have an attorney look at it, he told us we were good, at least that might not stop a finding of infringement, but generally it will stop a finding of willful infringement, which is, you know, three times the damages. So they take the damages, multiply them by three. They punish you greatly for that. So, you know, the one thing I tell, you know,

Christian Brim (34:16.173)
Hmm.

Austin Bonderer (34:22.464)
If you think for patents at least Because the biggest question I guess how do I know someone's path? I'm like we don't know no because of priority but I always say if you solved a problem Like if you had something stump you and you're kind of thinking and boom you came up with a clever way around it That might be something as patentable that might be something that you can use to obtain a patent Which I also say is kind of a form of insurance because it ensures

Christian Brim (34:34.722)
Mmm.

Austin Bonderer (34:49.185)
It allows you to explore the marketability of this product, hopefully without competitors jumping in.

but there's no guarantee.

Christian Brim (34:57.294)
And to clarify, is patents only apply maybe. I mean, this is my question. Patents only apply to physical objects like software. does not apply to, or does it?

Austin Bonderer (35:10.428)
I can apply to methods and methods of manufacturing and this kind of stuff, but it is ever since the Alice decision, it cannot.

Christian Brim (35:20.788)
Meaning, meaning I can't get a patent on my software.

Austin Bonderer (35:20.852)
right. But certain softwares you can. So the way I tell people to think about it is like, look, if, you know, I always, you know, movies Rayman, if Rayman could do it in his head, you can't get a patent on it. So basically if Rayman can take some information in process it with an algorithm or compare it to the knowledge in his head and spit out an output, you can't get a patent on that. But there are like certain softwares that can because

It's something that Rayman can't do. If you can make the internet run better. If you can make transactions more secure. If you can increase the security of communications. That's some kind of item that can. But I got to tell you that the patent office is all over the place on this. It's called patent eligibility. They have this test. It's very difficult, very hard to understand. it's very, I tell people it's almost not worth it.

Christian Brim (36:18.007)
Okay.

Austin Bonderer (36:18.048)
You might have the most wonderful software in the world. Maybe it will be worth it at that point. But even when we were getting patents for software, it took five years. Plus. So in the way software runs. Yeah, we would hear from our clients. Thank you so much. did a great job, but we stopped doing that three years ago because it's easy. I mean, it's not like you got to change the product line. So you got to re machine everything. You just hit a couple of buttons.

Christian Brim (36:29.422)
And by then the problems changed. Yeah.

Christian Brim (36:39.0)
Right.

Christian Brim (36:44.054)
Right. Right.

Austin Bonderer (36:47.686)
Enter and boom, the whole thing's changed.

Christian Brim (36:49.986)
Does copyright law apply to software code?

Austin Bonderer (36:54.29)
Yes, but that's exact. It's just the code like exact code. You can't protect the functionality, but someone can't come in and copy and paste what you have and throw it up. So there was this whole thing. I don't know if it's true, but the joke was is that Microsoft would always put, you know, their their phenoms, their 14 year old employees or whatever they were on all these different little software projects and they have to write a little bit of code.

Christian Brim (36:59.351)
Right.

Okay.

Austin Bonderer (37:22.356)
because the way the copyright law works because of the mouse, it's 90 years plus the life of the inventor or creator. So what their hope was is these young kids would live forever. So then it was 90 years and this kind of stuff. So that was always kind of the, you know, I don't know if it was true, but that was the, or that was a myth at the time where they, you know, what was, what was being said.

Christian Brim (37:31.072)
okay.

Christian Brim (37:49.527)
Austin, this has been very informative. If our listeners want to reach out to Austin Bonderer, not Roger Federer, the tennis player, is that correct? Okay, I got that right. Now that I made that connection, how do they find you?

Austin Bonderer (37:59.624)
That's right.

Austin Bonderer (38:05.816)
They just look up bondurerpatents.com or just put in bondurer and patent and you will find me because I'm the only guy out there with that name doing pets.

Christian Brim (38:17.422)
Perfect. Listeners will have those links in the show notes. If you've liked what you've heard, please rate the podcast, share the podcast, share, subscribe. That's the third thing, subscribe to the podcast. If you want to listen to something different, you can shoot us a message, tell us what you'd like to hear and I'll replace Austin. Until then, ta-ta for now.

Austin Bonderer (38:39.883)
Thank you.