Please find enclosed a letter that I recently sent to a franchisor in answer to my first article on "Invent Help". In this letter, I expressed my sincere desire to work with the franchisor and thank them for bringing this matter to our attention. I also stated my willingness to assist them in any way that they needed to assist me in improving the operations of their franchise. In doing so, I did not intend to take sides in this dispute nor did I intend to use the dispute as a soapbox to blast against their franchisor. However, upon reviewing the letter, it appears that I might new inventors.
The first thing that struck me as odd was the terminology they used in describing my request for "Invent Help". They described my request as a "request for information", "feedback". This is a clear indication that they know that I have a legitimate concern about their manufacturing procedures, yet chose to describe my comments as "feedback". Further, their language suggested that my comments were motivated by competition from their franchisor's other franchises, when it could clearly be interpreted as a comment about the benefits of their own franchise.
This brings up an important issue. How should franchisors respond to concerns that are raised by their franchisees about their company's operations? While there is no legal requirement in the United States for franchisors to provide support for franchisees who are complaining about their business practices, they are often required to do so under federal law, which requires franchisors to respond to all legally permitted complaint, or question. Therefore, it is highly likely that franchisors will be subject to a number of lawsuit claims regarding their conduct of the franchise system. Therefore, the first step in resolving a problem regarding inventions is to promptly determine whether the allegations are true and, if so, to resolve those issues.
However, it is not always easy to determine whether an invention is infringed upon or not. Even when the patent is infringed upon, one must demonstrate that there has been infringement. Therefore, it is often necessary to engage in what I call "class action" litigation, which involves one filing suit in respect to an alleged infringement of a patent by another party. This type of lawsuit does not necessarily require trial, as most of the discovery is required only after the complaint has been filed. Therefore, this type of litigation presents useful information about the cost of filing the lawsuit and about the potential damages a class action plaintiff can obtain.
My experience as an inventor and patent examiner has led me to conclude that there are at least two potential sources for defective inventions. First, one may have created a product that infringes the rights granted in the United States Patent and Trademark Office's application process. Second, a person may have engaged in activities that result in the infringement of another person's patent rights. Therefore, it is necessary to identify the source of the infringing activity in order to determine whether the application of the patent should be denied. If I'm wrong and there was no prior art or the invention was never patented or registered, then my preferred course of action is to seek the counsel of an expert qualified to provide "verified review" of the invention.
Verified review refers to a process by which the examiner verifies that the description provided in the application of the patent is correct and that the invention described in the complaint is indeed unique. The examiners typically rely upon the knowledge of persons who possess the relevant expertise. For example, if an individual manufactures a widget, the manufacturer typically hires a programmer to create a test program and a verified review is performed by a licensed professional. Assuming that the programmer does correctly describe the invention in the way the patent examiner describes it, the company will probably receive a cash settlement for its legal expenses.
If, on the other hand, the invention was disclosed to the patent office during the invention process or at a later date, the patent applicant must demonstrate to the patent examiner how a reasonable person would believe that the invention is not unique. This requirement is referred to as the "reliable authority" standard. For example, if an individual procures services from a mortgage broker, the mortgage broker must provide documentation that he or she has had a reasonable opportunity to review the client's mortgage documents. The patent applicant must also provide documentation that a reasonable person would believe that the invention was not known to the person at the time of the sale.
The patent examiner will perform an initial examination of the invention idea or patent application and determine whether it is eligible for protection under the patent rules. Then the patent examiner will perform a more detailed examination to determine if the invention is not only legally sufficient but also esthetically acceptable. Assuming that the application is found eligible for protection, the patent applicant must then prepare and submit a legal specification and application for patent clearance. An inventhelp specialist can be very useful to the patent applicant in preparing the patent application and in the later prosecution of the invention.