The Who, What, Where, When, Why, And How Of Patents

Patent law in plain English. But not in that order.

Venice Canal

Why File Patents?

Patent laws exist. Just like tax laws exist. Smart companies take advantage of patent laws. Just like smart individuals take advantage of tax laws by itemizing their deductions on their tax returns rather than filing the short form 1040EZ and paying more taxes than they have to.

That said, patent laws do not have to exist in an ethical vacuum.

All modern patent laws derive from the epically awesome 1474 Venetian Patent Statute, which states, in part:

WE HAVE among us men of great genius, apt to invent and discover ingenious devices; and in view of the grandeur and virtue of our City, more such men come to us from divers parts. Now if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor’s honor away, more men would then apply their genius, would discover, and would build devices of great utility and benefit to our Commonwealth.

The goals of the original patent statute of Venice were noble and worthy: to entice men (and women) of great genius to come to Venice to enrich the lives of its citizens. Fast forward to 1789, when the US Constitution was written and the so-called “patent clause” (Article 1, Section 8, Clause 8) was enacted without controversy and WITHOUT DISCUSSION:

The Congress shall have Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Patent laws (such as these) based on the right ideas and ideals should, rightly, be noncontroversial. Where we get into trouble, as a society, is when the letter of the law departs from the spirit of the law. Such is the case with modern day patent trolls, who would have done nothing to enrich Venice and should have no place in 21st century US patent law.

So it is easy, I argue, for a patent lawyer to be ethical and idealistic: simply represent those clients who follow the spirit of the law. Some doubt that it is possible to identify such clients. To those doubters I say: (1) ask yourself why you went to law school in the first place and (2) ask your mother for her opinion.

With that historical preamble, I acknowledge that there are many valid reasons for getting a patent, including:

  • employee motivation/retention
  • defense (and quid-pro-quo licensing)
  • impressing clients (with shiny “patent pending” technology)
  • impressing inventors (actual and potential)
  • impressing your board of directors
  • scaring off competitors

Habit #2 of the “The 7 Habits of Highly Effective People” (book by Stephen R. Covey) is “begin with the end in mind.” So before you dive into the patent waters, know what your business goals are.

Where To File Patents

A US patent gives the patent owner the right to exclude others from making, using, and selling the patented thing in the US. Other countries confer similar rights on patent owners. In general, you should patent your product where your customers are.

If you are a US-only entity, then consider a US-only patent strategy. An advantage of pursuing a US-only patent strategy is that you can file a nonpublication request (with the initial US patent filing) and avoid having the patent application published 18 months after filing, which is the default. This way, if the patent application does not mature into an issued patent, then you can abandon the patent application and keep the patent application a trade secret. In other words, the secret sauce will only be revealed if/when a patent issues.

For most US startups, filing patents outside of the US is a waste of money. It generally costs four times as much to get patent protection in all of Europe as it does in the US. That said, there are two times when filing non-US (i.e. “foreign”) patent applications makes sense:

  1. First, if you have significant non-US business. What’s significant? I think 20%.
  2. Second, if you have a likely acquirer (or investor) located outside of the US.

As an aside, I don’t like the term “foreign” as it depends on one’s perspective.

Who Is The Inventor? Who Files The Patent?

First, who is the inventor? Steve Jobs may not have engineered the innards of Apple’s original iPod, but the product whose patent (correctly) bears his name was, by all accounts, his idea. As do many other of Steve Job’s inventions. Because that’s who the inventor is: the one who CAME UP WITH (i.e. conceived) the idea. NOT the one who built it (i.e. reduced the idea to practice). That said, products have many features, and if a particular feature was your idea, then you are the inventor of the embodiment of the product that includes that feature. Inventorship, therefore, is determined on a claim-by-claim basis and must be carefully reviewed for accuracy before a patent issues.

Second, who is listed first? The first-named inventor is the one whose name goes on the patent. The others get to be in the “et al.” category, which is somewhat less rewarding. So you should list the names of the inventors carefully on the patent application. (Perhaps this should be the first issue.)

Finally, although inventors are individuals, most law firms represent companies, and most companies require their employee/inventors to assign their patent rights to the company as a consideration of employment.

What Can Be Patented? What Should Be Patented?

A related question is “whether” to file a patent application. So I’ll address that question first. If you have a product that cannot be reverse engineered by virtue of its having been launched (where “launch” is defined as sold, offered for sale, publicly used, or published), then you should consider keeping your product a trade secret rather than pursuing patents. Trade secrets last as long as they remain secret. Patents last only 20 years from when you file them.

But if you do have a product/service that can be reverse engineered, then patents may be a good fit.

The legal requirements for getting a patent focus on legalese and are numerous and confusing. (In short, your product must be new, useful, nonobvious, and sufficiently disclosed.)

The plain English requirements for getting a patent, on the other hand, are two and product-based:

  1. If you have a “product” (which I’ll define more in a moment), that you believe to be better/faster/stronger than the competition, using features/benefits that YOU define (think marketing/sales sell sheet), then you have satisfied the first requirement (which is, essentially, the novelty requirement of patent law). Most startups can easily do this. It’s why you quit your day job and joined a startup.
  2. If your product has one feature/benefit that is unique to you (think “secret sauce”), then you have satisfied the second requirement (which is, essentially, the nonobviousness requirement in patent law). Not all startups can do this. Just because you have a winning product in the marketplace doesn’t mean you can win at the Patent Office. This issue occupies 95% of the time of patent practitioners (i.e. patent attorneys and patent agents). Recent US Supreme Court case law has made it extremely easy for the USPTO to reject patent applications as being “obvious” (in law) even though they are not “obvious” (in fact).

To keep things simple, I define “product” to include both “product” and “service.” And your “product” is anything you do sell, anything you could sell, anything you do license, anything you could license, anything you use internally, and any improvement to any product (think point release for software); whether or not you charge money for the product. Google Search is free for users, it is a product. The Twitter API is a product. Version 2.0 of your software is a product. So is version 2.1 And so on.

So if your startup is struggling to craft its patent strategy, know this: your product strategy IS your patent strategy. Before (and more on “when” below) you are getting ready to launch any product, you should consider filing a patent. Put a box around it, think how you’d position it in the marketplace, then you’re ready to patent it. Believe it or not, marketing/sales materials are as helpful (if not more helpful) than technical documents for writing patents. So the two most important people on your patent team are you CTO and CMO, not necessarily in that order.

When To File Patents

The ideal time to file a patent application is the day you can describe how to make and use your invention, and the ideal time to start the patent application process is two months before the day you can describe how to make and use your invention. A practical way to think about timing is to start the patent process two months before your scheduled product launch.

In 2013, under the guise of “patent reform,” US patent law changed from a first-to-invent system (i.e. the best patent system in the world) to a first-inventor-to-file system (i.e. like the European patent system). Under the old system, US patent applicants had a one year “grace period” between launch and when they could file for US patent applications. Under the new system, this grace period has been gutted, and, due to sloppy drafting, ambiguities in the new law have caused pragmatic patent practitioners to conclude that the US is the functional equivalent of an “absolute novelty” state (like Europe). In other words, you should treat the old grace period as if it no longer exists.

Under the old law, if you launched a product, then you could not get a patent in Europe, but you could, within one year of launch, still file in the US.

Under the new law, the only safe way to protect both US and no-US patent rights is to file patents BEFORE launching the product.

In addition, if you have filed a US provisional patent application, and you want to keep the benefit of the provisional’s filing date, then you have to file US (and non-US) patent applications within one year of the provisional’s filing date. (But most non-US patents are a waste of money, as discussed above.)

How To File Patents

You should budget one month for a patent search and a second month for writing and filing the patent application.

Why do a patent search? Because the whole trick to writing patents is navigating around the minefield of prior art. As the patent applicant, YOU get to define the product, YOU get to choose which features/benefits to emphasize. So you should do a patent search for the same reason the bear went over the mountain: to see what you can see. You will not be able to see everything, since a patent search cannot find everything (such as provisional patent applications). But it’s wiser to do a patent search than it is to try to navigate a minefield of prior art blindfolded.

Large companies (and the patent bar review firms that cater to their lawyers) will tell you not to do a patent search because (1) anything you discover needs to be disclosed to the USPTO and (2) if you find a patent and a later found to have infringed that patent, then you may be on the hook for triple damages.

These things are both true. But if you do the math (e.g. an expected value calculation or two), then you’ll discover that they are largely irrelevant for startups.

For small startups, the economics are quite different. First, you are hanging your hat on one or two core pieces of intellectual property, so it behooves you to figure out what the patent landscape looks likes. Second, you are not (yet) deep-pocketed, so you are not (yet) a target for patent litigation.

Do a patent search. Don’t skimp on it. It will inform you about whether, and, if so, how to file a patent application. Here are some possible recommendations for how to proceed after a patent search:

  1. Proceed with neither the product nor the patent, because someone else has the patent and the product.
  2. Proceed with the product but not the patent, because the technology is covered by an expired patent.
  3. Proceed slowly with the patent, because the technology area is crowded. It will take years and tens of thousands of dollars to get a patent. In this case, starting with a provisional patent application might make sense, to give you one extra year of “patent pending” status.
  4. Proceed quickly with the patent, because this is breakthrough technology. This is rare but exciting.

If you decide to proceed with a provisional patent application, then don’t skimp on that either. It is the foundation upon which your future IP house will be built. Filing a napkin provisional is like building your house on sand. Garbage in, garbage out (to mix my metaphors).

After completing the patent search phase, Clocktower (my firm) recommends, in about 40% of the cases, not to proceed with a patent application. We feel it is better to spend a small amount of money on a patent search rather than skip a search and waste much more money on a patent application that never should have been filed in the first place.

There are good and bad patent lawyers at big and small law firms. Clocktower likes to think that ours are good patent lawyers at a small law firm. The Clocktower method is simple: you teach us enough about the technology to write the patent, we teach you enough about the law to make the right business decision at the right time. At Clocktower, we give you the advice that we’d want to hear if it were our company.

That said, we’re not the right patent law firm for everyone. But we’re a good choice for many.

But not for patent trolls.


Erik J. Heels is a trademark and patent lawyer, Boston Red Sox fan, MIT engineer, and musician. He blogs about technology, law, baseball, and rock ‘n’ roll at ErikJHeels.com This article was conceived on 2013-12-18 and reduced to practice on 2014-03-12 to coincide with a presentation by Erik at the Koa Labs Start-Up Club in Harvard Square, Cambridge, MA.

17 Related Posts

  1. Beware Of Patent Reform (2013-03-06)
    Goodbye first-to-invent, hello first-inventor-to-file.
  2. 17 Is The Most Random Number (2013-01-17)
    The Most Random Number Is 17.
  3. Top 10 Things BigLaw Patent Lawyers Don’t Want You To Know (2012-09-26)
    And won’t tell you. Srsly.
  4. Patent Trolls (2012-01-31)
    Patent Trolls Are Evil
  5. PCT Patents (2012-01-31)
    International Patents
  6. Software Patents (2012-01-31)
    US Software Patents
  7. Business Method Patents (2012-01-31)
    Patenting Business Methods
  8. Design Patents (2012-01-31)
    Design Patent Applications
  9. International Patents (2012-01-31)
    Foreign Patents
  10. Trade Secret Protection (2012-01-31)
    Protect Ideas With Trade Secrets
  11. Provisional Patents (2012-01-31)
    Provisional Patent Applications
  12. Clocktower’s Winning Clients http://goo.gl/Y0IkP (2011-05-24)
    $2 Billion In Angel/VC Funding + 10 Acquisitions By Public Companies.
  13. Men Of Great Genius: Venetian Senate, Patent Act of 1474 (2011-04-11)
    All modern patent statutes are derived from the Venetian Patent Act of 1474.
  14. Patent Law 101 (2011-01-26)
    An introduction to patent law in plain English.
  15. A Mere Mortal’s Guide To Patents Post-Bilski (Or Why §101 Is A Red Herring) (2010-07-09)
    It Don’t Mean A Thing If It Ain’t Got That Swing
  16. Drawing That Explains Patent Costs (2007-08-17)
    How to control the cost of filing a patent.
  17. Patents vs. Trade Secrets (2002-02-05)
    The advantages and disadvantages of protecting business ideas with patents and trade secrets.

Drawing That Explains ErikJHeels Blog

Technology, Law, Baseball, Rock ‘n’ Roll.

Why do I write about more than one thing? Because I think single-subject blogs are, for the most part, boring.

Do you like musicians who play only one note? Artists who use only one color? OK then.

So I drew the above drawing to explain this blog. I’m pretty sure that:

  • technology + law = patents
  • law + baseball = umps
  • baseball + music = organs
  • music + technology = MP3s

But I’ve not yet figured out the following:

  • A = music + technology + law
  • B = technology + law + baseball
  • C = law + baseball + music
  • D = baseball + music + technology

Let me know if you figure it out.

I do know this. As soon as I stopped caring what the “experts” said and started writing about whatever was on my mind, my blog started producing results. Your mileage may vary.


Erik J. Heels is a trademark and patent lawyer, Boston Red Sox fan, MIT engineer, and musician. He blogs about technology, law, baseball, and rock ‘n’ roll at ErikJHeels.com.

The Perfect Treehouse (Part 2)

Build one with your kids.

In the summer of 2003 and 2004, the perfect treehouse took shape in a four-stem maple in the back yard of a house in Acton, MA.

The Perfect Treehouse (Part 1)

The treehouse was built by @ErikJHeels and his kids. This is a video tour of the treehouse.

Part 1 – Red House, Red Cat House, Red Treehouse

Part 2 – Apple Tree Ladder, Foundation

Part 3 – Opening The Entrance Hatch

Part 4 – Opening The Back Hatch, First Counterweighted Hatch

Part 5 – Second Counterweighted Hatch, N-Hatches, Double-D Hatches, Emergency Escape Hatch

Part 6 – Trunks, Branches, Holes, Roof, Loft

Part 7 – Sleeping Arrangements For Five, Second Floor Carpeted Loft

Part 8 – View From The Treehouse, My Brother Mark

Part 9 – Chicken-Head Hatch, Safe Way For Kids To Descend

Part 10 – Alternate Way For Adults To Descend

Drawing That Explains Copyright Law

Copyright rights, unregulated uses, and fair use.

On 10/19/05, the daughter of one of my MIT friends shadowed me for a day at work as part of a school project. One of the good things about spending time with children is that it forces you to explain things in simple terms. That day, I drew lots of drawings. So here is another installment Erik explaining things with drawings.

In this drawing, I attempt to explain the wonderful world of copyright law. As an aside, I think that all intellectual property (i.e. patent, trademark, copyright, and trade secret) lawyers like writing about copyright. Because we’re all familiar with stuff that copyright protects – books, movies, CDs, DVDs, radio, TV, and the like. Even if, like me, they don’t practice copyright law.

What most people don’t appreciate is that there are three types of uses of copyrighted stuff. And not all of those rights are protected by (and hence can be legally controlled by) the copyright owner. Have you ever seen a copyright notice that says “It is illegal to make a copy of this copyrighted document”? Well, that’s not true, because it excludes fair use. I’ve often thought that the Copyright Act should be amended to say that all copyright rights are forfeit if an incorrect copyright notice is placed on a work. But that will never happen. On to my drawing.

On the right side of the drawing are the uses that are unregulated, one that are not covered by copyright rights. So you don’t need permission from the copyright owner to:

  • read a book
  • see a movie
  • watch the Red Sox at Fenway Park
  • borrow a book from a library

In the middle of the drawing are uses that are covered by copyright but uses that have been declared to be “fair use” by the law. So you can use copyrighted works without permission (to some extent) for:

  • commentary
  • parody
  • limited educational use

On the left side of the drawing are the uses that are exclusive to the copyright owners. These include the rights to:

  • copy the work
  • distribute the work
  • make derivative works from the work (such making a moving from a book)

My drawing could be better. And my explanation could be better. But again, I drew this for a child, so it’s a good place to start. The main point is that there are three classes of uses: unregulated, fair use, and protected. And you have to think carefully about which type of use is which. Many copyright owners fail to do this, unfortunately.


Creative Commons License

This article is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

Nine Principles Of Baseball And Life

Philosophy of Baseball: How to Play the Game of Life.

2013-07-30-baseball-iStock-000008527543XSmall-347x346

After my oldest son’s baseball game last night, I asked him, “What is the one thing that you can control in baseball?” He replied, “Your actions.” That’s the correct answer. It applies not only to baseball but to life. As I told my son:

“You can’t and won’t always be the fastest, biggest, or smartest in everything that you do. But you can give your best effort. You can choose how to act, and how to react. Responsibility is the ability to choose your own response (response + ability). I don’t care if the team loses. I don’t care if you make an error on every defensive play and strike out every time at the plate. I do care that you play the game correctly. Because in this league, you are learning not just about baseball but about life. You represent yourself, your team, and your town when you play. To paraphrase Albert Einstein, success in life is 10% inspiration and 90% perspiration.”

I then did what any lover of baseball and the law would do. I contacted the author of an inspirational article about baseball and life and asked for permission to reprint it on my blog. The author, Raymond Angelo Belliotti, graciously granted my request. His 2001 article entitled “Nine Principles of Baseball and Life” is reprinted in its entirety below. In 2006, the article later morphed into a book called “Philosophy of Baseball: How to Play the Game of Life.”


Nine Principles of Baseball and Life

by Raymond Angelo Belliotti

Baseball is about parents taking their children to local fields and teaching them the sport. Baseball is about the bonding of parents and children in the context of 150 years of history and the excitement of the infinite possibilities of summer. Baseball is about preseason practices, with everyone playing a variety of positions, no one keeping score, everyone energized, yelling, and engaged. Baseball is passing down an American legacy, reinforcing family love, teaching values and a way of life, sharing joy and triumph, sorrow and defeat. Baseball can illustrate and enhance the meaning in our lives. Baseball is only a distant cousin to organized games, all star tournaments, or names appearing in the local sports pages.

My Sicilian parents taught me values about life that are applicable to playing baseball. My father made it clear: if I acted inappropriately on a baseball field, no umpire, no coach, no league official would have to intervene. He would run onto the field himself and physically drag me off. He was not in attendance to be embarrassed by a son who had not learned proper values. The most important rule: approach any task with great enthusiasm, a positive attitude, and with appreciation for the opportunity to participate. My 9 principles of baseball are more fundamentally 9 principles of living a rewarding life.

1. NO EXCUSES.

Do not blame teammates, umpires, coaches, fans, or the position of the moon for your performance. Take responsibility for what happens on the field. Stand up, make no excuses, refuse the excuses that others might offer you. Excuses get in the way of learning because mistakes are denied. Be accountable. Remember you are not expected to be a perfect performer. No one is. Baseball is not an easy game to play.

2. PLAY WITH HONOR.

Always hustle, run out every ground ball and pop up, encourage your teammates, especially after an error, bad pitch, or a strike out, carry yourself with pride and dignity. Do not in frustration throw equipment. Do not ridicule another team or an opposing player’s name, physical appearance, skill. Do not taunt. Do not distract an opposing player with low-level antics. Be positive with teammates. Never ridicule or criticize your teammates. They need your encouragement the most immediately after they have made a mistake. Show your teammates, your opponents, the entire world the values you hold dear by how you play.

3. BE RELENTLESS.

Never Yield. Never Yield. Regardless of what the scoreboard says, you are never defeated unless you give up, unless you go belly up. No opponent can make you do this. Giving up is something you do. Regardless of what the scoreboard says, no opponent can extinguish the flame in your heart or crush the intensity of your will without your consent. Never surrender.

4. SLAY YOUR OWN DEMONS, THEN SLAY DRAGONS.

Ignore those things outside your control: the judgments of umpires, the conduct and ability of other teams, the weather, your amount of playing time, the final score (this is a tough one). Do not show frustration or disappointment. Do not allow your opponents to gain joy from your inability to cope with self-pity. Do not throw equipment or whine in anger or slump your shoulders. Such behavior impresses no one. Maintain your poise. Learn, prepare, and focus on the next event. We cannot change the past. Instead, we should focus on the next action with determination, joy, and resolve.

5. TAKE RESPONSIBILITY FOR THOSE THINGS UNDER YOUR CONTROL.

Your effort, your attitude, your commitment, and your approach to the game are under your control. Be enthusiastic, play with great effort, conduct yourself appropriately, meet this opportunity with great joy. Listen to your coaches. Be alert, play smartly, know the signs. You are always accountable. How you react to situations and circumstances reveals the person you are and the person you might become.

6. PLAY THE GAME ONE PITCH AT A TIME.

Focus on the current pitch. If you are a pitcher, what are you throwing now and where? If you are a fielder, what are you going to do if the ball is hit to you? If you are a base-runner, what are you going to do on a fly ball, line drive, ground ball, to the right side, to the left side? If you are a batter, what are you trying to accomplish on this pitch? If you are on the bench, how are you helping your team be successful?

7. FOCUS ON BEHAVIOR, NOT OUTCOMES.

The results of your performance are not fully under your control. The other team may be very good, or very bad. The bounces may go your way, or not. But your behavior and approach are under your control. At the end of the game, you, perhaps only, know whether you gave 100%, whether you did all you could to help your team. Those players who did are winners, those players who did not are losers, regardless of what the scoreboard says. Winners take care of the things within their control, enjoy their participation, and are justifiable proud of their effort. Losers make excuses, lose their poise readily, wallow in self-pity, and surrender at the slightest sign of adversity.

8. THE BEST PLAYERS ARE THE BEST LEARNERS.

Players who are coachable are always trying to learn more about being successful ballplayers and people. They listen and apply what their coaches and teachers suggest. Are you coachable? If you are, you are a winner. If you are not, you are a loser, regardless of what the scoreboard says.

9. BE A JOYOUS WARRIOR!

Be enthusiastic, positive, give 100%, understand that relentless effort in the pursuit of excellence is its own reward. The joyous warrior exemplifies the slogan “No Retreat & No Surrender.” Win with humility, lose with dignity.

Copyright Raymond Angelo Belliotti 2001. All rights reserved. Reprinted by Erik J. Heels in 2007 with the permission of the author. Raymond Angelo Belliotti is the Distinguished Teaching Professor in the Department of Philosophy at the State University of New York/Fredonia. He can be reached at http://www.fredonia.edu/.

Social Networking Expiration Dates

Is your favorite social network budding, fresh, ripe, or rotten?

Trends

Check Your Assumptions At The Door

In the 1990s, writing business books was easy. So was picking stocks. Remember day trading? It’s easy to pick stocks (or write business books) in a bull market. But nothing lasts forever, including bull markets, as history teaches us.

So when I sat down to analyze which social networks I should pay attention to and which I should ignore, I did so with the context of history as my guide. In the spring of 2012, the excellent article and infographic The Rise And Fall Of Online Empires: Will Facebook Survive? did the very same thing, comparing the rise (and sometimes fall) of six online companies: AOL, Yahoo!, AltaVista, MySpace, Digg, and Facebook. (And, yes, Facebook will survive.)

An embedded infographic from the 2012 article appears below. If the image fails to appear, then click the words “online empires infographic.” (Because the web-based Internet has only been around for 20 years and it’s not like anyone has had time to work on data standards or anything.)

The Rise and Fall of Online Empires
Via: CenturyLinkQuote.com

I used those six companies as a starting point and added other top social networks to the list.

In the spirit of checking my assumptions at the door, here are mine. I assume that:

  • Every company has a beginning, middle, and end.
  • Google Trends is a good measure of a company’s beginning, middle, and end.
  • Google Trends is a decent measure of a company’s beginning, middle, and end even if that company’s history pre-dates Google.
  • Google Trends itself will be discontinued by Google, since Google has a long history of getting bored of (and then dropping) various products. See Wikipedia’s list of Google products (generally) and Google Reader (specifically, below).
  • Google Trends cannot predict the future. (Otherwise I’d be a day trader.)
  • A company has more or less peaked when it scores 100 on Google Trends.
  • A company is more or less rotten when it scores 50 on Google Trends after having peaked.

Google Trends: Top 15 Social Networks

Without further ado, here are the top 15 social networking companies, as ranked by Google Trends, from most to least popular.

1. Facebook
2. YouTube
3. Google
4. Yahoo
5. MySpace
6. Twitter
7. blog
8. AOL
9. Tumblr
10. LinkedIn
11. Pinterest
12. AltaVista
13a. Google Plus
14. Digg
13b. Google+
15. Google Reader
13c. GooglePlus

Notes:

  • I put Google on the list, because it is clearly an “online empire” although less clearly a social networking company.
  • I put YouTube on the list because YouTube. And because this is one acquisition/brand that Google hasn’t broken/abandoned yet. (Note also that YouTube still isn’t profitable.)
  • I but “blog” on the list because it is the broadest term that should include blogs, weblogs, blogger, Blogger, and blogging. Blogging is the only generic social network on this list.
  • I put Google Plus on the list three times, since it’s the only one on the list with multiple common spellings of its name (i.e. Google Plus, Google+, and GooglePlus). Maybe social networking brands should be one word.
  • Digg (perhaps an odd inclusion on the first list) is slightly below Google Plus in the rankings but can take some comfort in being slightly above Google+, Google Reader, and GooglePlus. (Note also that Digg Reader is still awesome, especially given the untimely death of Google Reader.)

From the results, you can clearly see the interest in various social networks rise and fall over time.

I’ve grouped the social networks into four stages:

  1. For budding social networks, the interest graph includes only the left side of the interest bell curve. No obvious peak is yet in sight for these social networks.
  2. For fresh social networks, the interest graph includes the middle of the bell curve. Perhaps these social networks have peaked, perhaps not.
  3. For ripe social networks, the interest graph includes the right side of the bell curve. These social reworks appear to have peaked.
  4. For rotten social networks, the interest graph includes the entire bell curve. These social networks have peaked and are in decline (if not dead).

Stage 1: Budding Social Networks

This is the shortest list: Pinterest.


Pinterest (peak = February 2012, rotten = TBD)

Other top social networks Instagram and Vine could arguably be added to this list, but I had to draw the line somewhere.

Stage 2: Fresh Social Networks

Four social networks are fresh: YouTube, Google, Tumblr, and LinkedIn.


YouTube (peak = December 2013, rotten = TBD)


Google (peak = September 2014, rotten = TBD)


Tumblr (peak = June 2013, rotten = TBD)


LinkedIn (peak = October 2014, rotten = TBD)

Stage 3: Ripe Social Networks

Three social networks are ripe: Facebook, Yahoo, and Twitter.


Facebook (peak = December 2012, rotten = TBD)


Yahoo (peak = November 2012, rotten = TBD)


Twitter (peak = December 2012, rotten = TBD)

Stage 4: Rotten Social Networks

Seven social networks are rotten: MySpace, blog(ging), AOL, AltaVista, Digg, Google Plus (Google+, GooglePlus), and Google Reader.


MySpace (peak = July 2007, rotten = September 2009)


blog (peak = May 2009, rotten = August 2014)


AOL (peak = January 2009, rotten = June 2014)


AltaVista (peak = May 2006, rotten = August 2008)


Digg (peak = May 2007, rotten = May 2009)


Google Plus (peak = July 2011, rotten = August 2011)


Google+ (peak = July 2011, rotten = August 2011)


GooglePlus (peak = July 2011, rotten = August 2011)


Google Reader (peak = December 2010, rotten = August 2013)

Google Trends: Relative Interest Rankings For The Top 15 Social Networks

Since Google Trends only allows you to compare five terms at a time, I had to run multiple searches in order to arrive at the above individual rankings. But when you compare the top five online empires on the same graph, Facebook clearly dominates. The same is true of other groupings. Just as #1 Facebook dominates #2 YouTube and #3 Google, #4 Yahoo dominates #5 MySpace and #6 Twitter, and #7 blog(ging) dominates #8 AOL and #9 Tumblr.

I ran searches in groups of 3 of the top 15 online empires:


Facebook, YouTube, Google


YouTube, Google, Yahoo


Google, Yahoo, MySpace


Yahoo, MySpace, Twitter


MySpace, Twitter, blog


Twitter, blog, AOL


blog, AOL, Tumblr


AOL, Tumblr, LinkedIn


Tumblr, LinkedIn, Pinterest


LinkedIn, Pinterest, AltaVista


Pinterest, AltaVista, Google Plus


AltaVista, Google Plus, Digg


Google Plus, Digg, Google+


Digg, Google+, Google Reader


Google+, Google Reader, GooglePlus

Why Do I Care About This Stuff?

Fair question.

I’ve been on the Internet since 1984, had my 15 minutes of fame in 1994, worked for Internet companies from 1995-2001, then launched my law firm, Clocktower. The Internet matters to me both because it is an effective marketing channel and because it is where many of Clocktower’s cool clients live. So I like to keep track of Internet trends because Internet and because Clocktower.

As for my business, patents and trademarks are trending down:

But public companies and the Fortune 1000 are also trending down:

Fortunately, startups are trending up:

So Clocktower should be OK for the next 17 years or so.

Similarly, even if Facebook is in decline, it is so huge that it should dominate social networking for the next 17 years or so.

Summary

The worst business book from the 1990s, IMHO, is “The Innovator’s Dilemma” (1997). In that book, the author manages to turn an obvious and simple proposition (namely, that companies must compete with themselves before their competitors do) into a book by massaging data to fit the author’s pre-determined conclusion. In doing so, the author falls into one of the same traps for the unwary that entrepreneurs stumble (or, more correctly, eagerly leap) into: namely, believing your own press releases. Just like day traders in the 1990s had delusions of grandeur, entrepreneurs ridding a wave (or living in a bubble – pick your analogy) fall prey to fooling themselves.

My friend Peter, a serial entrepreneur, tells the story of advising an early-stage startup in the early 2000s (whatever that decade is called). While trying to raise a B round, the founders told Peter of their product success, (dubious) EBITDA positive, and projections for the future. When they finished their pitch, Peter asked them one question: “How many hours are employees working, on average, per week?” The founder enthusiastically answers, “Oh 70-80 hours per week easy! We live our work, we work when we’re home!” Peter calmly replied, “Well, the reality is that you have no business. Working 70+ hours/week is neither scaleable nor sustainable. Furthermore, correctly adjusted for a 40-hour work week, you are losing money, have no likelihood of ever turning a profit, and are trending down. Good luck.”

So the lesson for social networks of the 2010s (whatever this decade is called) is simple: don’t believe your own press releases. If you want to build to flip, then build to flip, but be prepared to see your hard work wither on the vine when you do. Otherwise, build to last, but know that few companies (much less social networks) end up being living companies.

As for the social networks listed above, except for behemoth Facebook and tortoise-like LinkedIn, it’s been nice to know you.


Erik J. Heels is a patent and trademark lawyer for Boston startups, Red Sox fan, MIT engineer, and musician. He blogs about technology, law, baseball, and rock ‘n’ roll at ErikJHeels.com.

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17 Seconds #10

17 Seconds = useful info quickly.

17 Seconds

We interrupt our usual patent and trademark news to bring you this tech anecdote. And to ask a small favor.

Recently, we sent an email to a company saying that their trademark was ready to file. And we sent reminders. Many reminders. Days passed, then weeks, then months. Then I sent an email to every address I had on file for this company. Finally we got a reply. As it turns out, our first email was caught in their s-p-a-m filters and was never delivered!

As you know, we really try not to include legalese in our emails, but we are lawyers, so there will be *some* legal language.

In any event, here is the favor: Please update your s-p-a-m filters to allow email from “clocktowerlaw.com” and “heels@alum.mit.edu” to get through.

And why do I often use my MIT email address? Because I get another layer of s-p-a-m filtering on the replies!

Ain’t technology grand?