Archive for the ‘Legal’ Category

There is a common saying that whenever you are presented with a problem or a challenge, you should turn it into an opportunity. Some of the people who have mastered this concept are; the United States Government, Large Corporations, Self Made Millionaires.

Was Y2K really a threat? Loot at all the companies that made a fortune helping you to become Y2K compliant. When it came right down to the wire nothing happened according to the predictions, we all remained on the Internet, our computers did not crash.

Michelangelo virus was yet another example; mass devastation was forecasted, yet few really got hit with the virus, but the software companies raked it in with increased sales for anti virus software to consumers in a panic.

The latest is the creation of email postage, as ridiculous as this concept sounds this is just yet another example of big corporations coming up with more and more ways to get the American public to bow to control. The general idea behind this is to charge email marketers postage on each email sent out. The bill died pretty quickly but now we have yet another bill called the Can/Spam Act just enacted. With this for an email marketer it would mean exorbitant rates just to have the privilege of reaching their recipients. Who is behind this? The answer should be obvious; it is big corporations like Microsoft and AOL. I believe Microsoft is charging approximately a $1400.00 licensing fee to email marketers if they wish to be able to deliver their advertisements with MSN or Hotmail email addresses.

If that is not bad enough check out the latest with Identity Theft issues. It seems as though because of the problem being so huge, Credit card companies are now offering Identity Theft protection, yes you can get insurance now incase your identity is stolen, which of course you must pay for. Lets look at this concept for a minute, if you dont want to lose a bundle getting hit by an ID thief and you cannot be guaranteed your information will stay private, though the Privacy Act demands it, you must pay for protection.

When you sign up for an account with a Credit Card company and have to give them your personal information, they are supposed to protect that information from leaking out to those who could use it against you. What is even worse is when it really does happen, it involves so many innocent people not just one, that law enforcement officers tend to misunderstand what is really going on and tend to re-victimize innocent victims. In some recent cases Victims have actually been accused of crimes themselves and had to defend themselves against judicial systems that are failing to recognize the problem for what it is. They are falsely accused and jailed in some cases for crimes they did not commit, all because a thief took it upon himself to wreak havoc on one persons life.

The character in Mel Gibsons Conspiracy Theory would have a field day with this information. So herein lies the proof that every situation has potential to be turned into opportunity given the right attention be paid, and the drive take the steps to make it happen.

Jeffrey A Solochek

Jeffrey A. Solochek

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“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent . . ..” – 35 U.S.C. § 101

The above excerpt of § 101 is the basis of patent law in the U.S. With the exception of a small modification in 1952, § 101 has remained virtually unchanged since written by Thomas Jefferson. Until recent times, the statute gathered little attention. However, with the addition of software and business method patents in the 1980’s, the statute has been the subject of dispute. Until about 1981, the U.S. Patent Office held that steps performed by a computer were unpatentable under at least § 101. However, in Diamond v. Diehr, 450 U.S. 175 (1981), the Supreme Court overruled the Patent Office and held that, though an algorithm and the like are abstract and unpatentable, the fact that an otherwise patentable process is carried out on a computer does not make it unpatentable.

As a result, to this day, software and business method patents are often written in a roundabout manner. For example, Einstein could not patent his famous E=MC2 formula because this is considered an abstract law of nature. However, claim a method of determining the mass of an object based on measurements of light passing through the object, and you have probably at least overcome § 101.

If the difference between the first and second example seem fuzzy, it is because it is. A patent is nothing less than the creation of a property right from an intangible concept, and it is no easy task to define the boundary of an intangible right. King Solomon said, “. . . that which has been done is that which will be done. So there is nothing new under the sun” (Ecclesiastes 1:9). Yet, the Supreme Court famously ruled, “anything new under the sun made by man” is patentable. Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980), quoting S.Rep.No 1979, 82d Cong., 2d Sess., 5 (1952).

For the past 30 years, the Patent Office and the courts have defined and redefined the difference between a patentable process and an abstract concept. No test has ever stood the test of time. A colleague of mine filed a patent we both knew the Patent Office was likely to reject under § 101. He retorted, “Who knows what the law will be in three years when the Patent Office finally examines this application?”

One of the presently used tests was stated by the Court of Appeals for the Federal Circuit in State Street Bank & Trust Co. Here, it was found that an idea is patentable if it produces a useful, concrete and tangible result. State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. Jul. 23, 1998). However in 2006 Justices Scalia, Thomas, and Alito noted, “this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. ” Lab Corp. v. Metabolite, 548 U.S. ___ (2006) (referring to O’Reilly v. Morse, 15 How. 62 (1854) for Morse code).

Meanwhile, while the U.S. Patent Office’s Interim Guidelines for Examination of Patent Applications for Patent Subject Matter Eligibility (2005) generally follow the Federal Circuit, the U.S. Patent Office Appeals Board in Bilski distinguished State Street, as only applying to “machine implemented” processes (contradicting State Street itself). The decision, complete with an excerpt from Disney’s Pirates of the Caribbean, is nothing less than a demand that the Federal Circuit’s test be overturned, perhaps, in a bid to decrease that Patent Office’s seven-year backlog for business method patent applications. The Supreme Court may agree.

The Bilski opinion is in the process of being heard en banc at the Federal Circuit, but the issue over whether to draw the line between a man-made discovery versus an abstract concept will likely remain a controversy for a long time to come.

Michael J. Feigin, Esq. is a Patent & Trademark Attorney and can be reached via his website at or

You are a struggling entrepreneur and sometimes it feels like you are pushing a 3 ton boulder up a steep hill. Costs keep mounting and you are considering giving up. Well before you do, check out these 10 setbacks that Walt Disney had, some were financial nightmares that put him millions of dollars in the red:

1) Walt formed his first animation company in Kansas City in 1921. He made a deal with a distribution company in New York, in which he would ship them his cartoons and get paid six months down the road. Flushed with success, he began to experiment with new storytelling techniques, his costs went up and then the distributor went bankrupt. He was forced to dissolve his company and at one point could not pay his rent and was surviving by eating dog food.

2) Walt created a mildly successful cartoon character in 1926 called Oswald the Rabbit. When he tried to negotiate with his distributor, Universal Studios, for better rates for each cartoon, he was informed that Universal had obtained ownership of the Oswald character and they had hired Disney’s artists out from under him.

3) When Walt tried to get MGM studios to distribute Mickey Mouse in 1927 he was told that the idea would never work– a giant mouse on the screen would terrify women.

4) The Three Little Pigs was rejected by distributors in 1933 because it only had four characters, it was felt at that time that cartoons should have as many figures on the screen as possible. It later became very successful and played at one theater so long that the poster outside featured the pigs with long white beards.

5) Snow White and the Seven Dwarfs was sneak previewed to College Students in 1937 who left halfway during the film causing Disney great despair. It turned out the students had to leave early because of dorm curfew.

6) Pinocchio in 1940 became extra expensive because Walt shut down the production to make the puppet more sympathetic than the lying juvenile delinquent as presented in the original Carlo Collodi story. He also resurrected a minor character, an unnamed cricket who tried to tell Pinocchio the difference between right and wrong until the puppet killed him with the mallet. Excited by the development of Jiminy Cricket plus the revamped, misguided rather than rotten Pinocchio, Walt poured extra money into the film’s special effects and it ended up losing a million dollars in it’s first release.

7) For the premiere of Pinocchio Walt hired 11 midgets, dressed them up like the little puppet and put them on top of Radio City Music Hall in New York with a full day’s supply of food and wine. The idea was they would wave hello to the little children entering into the theater. By the middle of the hot afternoon, there were 11 drunken naked midgets running around the top of the marquee, screaming obscenities at the crowd below. The most embarrassed people were the police who had to climb up ladders and take the little fellows off in pillowcases.

8) Walt never lived to see Fantasia become a success. 1940 audiences were put off by it’s lack of a story. Also the final scene, The Night On Bald Mountain sequence with the devil damning the souls of the dead, was considered unfit for children.

9) In 1942, Walt was in attendance for the premiere of Bambi. In the dramatic scene where Bambi’s mother died, Bambi was shown wandering through the meadow shouting,” Mother! Where are you, Mother?” A teenage girl seated in the balcony shouted out, ” Here I am Bambi!” The audience broke into laughter except for the red-faced Walt who concluded correctly that war-time was not the best time to release a film about the love-life of a deer.

10) The sentimental Pollyanna in 1960 made Walt cry at the studio screening but failed at the box office. Walt concluded that the title was off-putting for young boys.

Walt was human, he suffered through many fits of anger and depression through his many trials. Yet he learned from each setback, and continued to take even bigger risks which combined with the wisdom that experiencing failure can provide, led to fabulous financial rewards.

Stephen Schochet is the author and narrator of the audiobooks Fascinating Walt Disney and Tales Of Hollywood. The Saint Louis Post Dispatch says,” these two elaborate productions are exceptionally entertaining.” Hear realaudio samples of these great, unique gifts at