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May 30, 2023
John Rizvi, Esq.

John Rizvi - The Patent Professor's Keynote Address for SimsGhost 2019 at FIU

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00:07

First of all, I'm extremely excited to be here. medical simulation is really in its infancy. And I think Dr. Strickland is right is that there, this conference is going to be in the 1000s. The predictions are in the next five years, the medical simulation industry is going to be a $5 billion industry. And ironically, a little over five years ago, the US patent system underwent the single biggest change in the history of patent law. And at least in this century, we moved from a first to invent system to a first to file and going with Scott's point, if if we were still on a first to invent system, as long as you can prove that you've invented first, you have a chance in court. Obviously, especially with medical simulation, you're going to have prototypes that you put together, you're going to have receipts for materials, you might have videos, you have laboratory notebooks, there isn't a mountain of evidence, documenting the date of your invention. But in 2013, all of that is completely useless. And the US patent system switched to a first to file. And now it doesn't matter who invented first, it's whoever files the patent first, and I wasn't able to see the hands that went up on the those of you that have an idea in the works, and have not filed yet. Prior to 2013. The advice would be to document everything in the laboratory notebook, get witnesses, take video, keep your receipts, today, there's the advice has gotten much simpler to give, much harder to take. And that advice is to go ahead and and file a patent. So being a patent attorney, you're probably going to expect me to go into the nuances of patent law. And what it takes to prove conception, due diligence and all of these different factors. But I'm not going to start there. And the reason for that is that in my 20 years of practice, what's holding inventors back is not the lack of knowledge. And English writer John Ruskin probably said it best. And he said it's a little consequence, in the end, what you believe, or what you know, or what you think. And that the only thing that matters is what you do. And the reality is that it's not the lack of knowledge that is keeping a lot of inventors from pursuing their ideas, and protecting their rights. It's the comfort zone, that place that President Theodore Roosevelt referred to as the great Twilight, a place where you can avoid failure, and the harsh judgment of others. And in a moment, I'm going to tell you about a client of mine that escaped this great Twilight, he was a medical student, and he dropped out of medical school to pursue his invention. But first, what I'd like to do is take you back in time to when I was 12 years old. Now, at 12. I was incredibly cool, and stylish. Here's proof. And I was on a mission. This this is my favorite toy in the world was a Rubik's cube. And my dream and practically my sole ambition in life was to create a round Rubik's Cube. You can tell the nerds early in one day, my mom took me to the mall. And I went where I always went back then some of you might remember a toy called KB Toys. And I went to KB Toys I went to that shelf where I always went that had puzzles and games. And what I saw there on the shelf crushed me. Somebody else had already invented a round Rubik's Cube and they came up with a better name than round Rubik's Cube. They called it be impossible, the impossible. And in my 12 year old mind, they had stolen my idea and I tried hard not to cry in front of my mother. But But who knows you as well as your mom. My mother had seen the sketchbook under my bed with page after page of drawings of what was supposed to be my design. And I looked up at Her eye was strong, I didn't cry. But my mom started crying. And for a kid at the mall, that's where all your friends hung out back then this was embarrassing. So I grabbed her by the hand, and I dragged her out of that toy store. The clerks there are used to seeing crying children dragged out. Not a crying mother. Now, no children cry when they don't get what they want. And do you know why that is? They actually believe that it's possible to get what you want. And when that doesn't happen, it's a shock to their system, and they start crying. But something happens to us as adults. Like we start believing the opposite. And we start dreaming small and dreaming safe, and staying confined. And within that comfort zone. Because people have convinced us that those dreams that we had, were just fantasies and people will keep you in that confined space, if you let them. Oprah Winfrey was told by a newspaper editor, or sorry, Oprah Winfrey was was told by a television director that she's too ugly for television, and should really stick to the radio. Well, Disney was told by a newspaper editor that he doesn't have enough imagination. Like imagine that Wayne Gretzky was told that, that he's too slow and small to pay to play professional hockey. How many of your dreams have you put aside, because somebody has convinced you that you don't look the right way? Or you haven't gone to the right schools, you don't have the right connections? The right amount of money, or social standing. But what would happen? If if you would set those comments aside and just push forward like a child and pursue what you think is yours with the expectation that you're going to get it? I'll tell you what would happen. Here's a quote from Mahatma Gandhi. First, they ignore you, then they would laugh at you. And then they would fight you. So this is a little bit depressing. So what I like to tell you is this is not the entire quote, I'll get to the full quote in a minute. First, I want to tell you about about my dream. When I was in law school, I wanted to be a patent attorney. But not just any patent attorney, I wanted to work at the law firm of Fisher Neve in New York City. And if you don't know Fisher, Neve, they are the lawyers that had represented Thomas Edison with the invention of the light bulb. They represented Henry Ford, Alexander Graham Bell with the telephone. And the Wright Brothers, with the invention of the airplane fishing nev is to like patents and inventions. What Muhammad Ali is to boxing. They were the greatest of all time. But I made a mistake. I didn't realize that, unlike Muhammad Ali, I wasn't prepared for a world that that hit hard and would crush your dreams. And I spoke to the placement director at the University of Miami. And I told her what I wanted to do. I told her I did that. I want it to be at least an inventor for my entire life and when that didn't work out a patent attorney and I wanted to go to fish and leave. And I remember her statement to me she sufficiently only hires from from Harvard and Yale. And they only look at students that had done summer internships, or summer internship. I didn't have the luxury of doing a summer internship. I went to school at night and worked full time during the day as an engineer. And although I didn't do a summer internship, I finished at the very top of my class, I aced the Patent Bar Exam. And I excitedly I sent in my application against her advice and says I'm telling you this you probably are anticipating that things ended up well. You would be wrong. I got this rejection letter. And it stung hard. I couldn't sleep for two nights and I tossed and turned and as I was a structural engineer so the next day I left the construction site where I was working at and I I drove To find a phone, a payphone for those

10:03

of you who don't even know what that is. And I stood there with a quarter in my hand and mustered up all the courage I could to call fish in need. And I did. And I spoke to miss Rogen, the person that had written the letter, and I explained to her that her law firms claim to fame is the representation of the Wright Brothers, like two bicycle mechanics that invented the airplane. And they didn't fit this perfect mold. Neither one of them went to college. In fact, only one of the Wright brothers had even finished high school. Mr. Rizvi, we're getting interrupted. Hiring Committee decisions are final. And I don't understand what your point is. My point, remember it like it was yesterday that the hair stood up on the back of my neck. I said your hiring committee has made a mistake. They need to look at my application again. Because they have misjudged me. Click, I don't know if my code changed anything. But I shown you I felt better. And I drove back to the construction site and continued the rest of my day, that was my lunch hour. And all was well. Until about five days later, I got a letter in the mail.

11:35

And it was from fishing nev. I was scared to open it. I'm a lawyer, I thought I was I was being sued or something.

11:45

But that letter was fishing nev inviting me to come on board and join them as an attorney. First, they ignore you. Then they laugh at you. And then they fight you. When they fight you. And if you're inventing something new, they will you need to fight back, ie to fight for your idea because nobody else is going to do that. I started up efficiently if I was working with the best patent attorneys in the world, making more money than I had ever even imagined. But something was missing. And the money feels the hunger in your soul in your your stomach, but not the hunger in your soul. And I couldn't quite figure out what was missing. And what it was is that for five years, I was in meeting after meeting with MBAs and corporate lawyers basically moving paper around, far removed from the creative spark of ingenuity of the inventor, which is why I'm so excited to speak to you guys today. There are not even college curriculums teaching, what you guys are doing. This is you're in the infancy of of medical simulation. And I was far removed from this. I was with corporate lawyers, and MBAs in all day meetings, and I wanted to quit somewhere. Still inside me was that 12 year old boy that had dreamed of creating something new. What I wanted, I wanted to work for garage inventors. I wanted Steve Jobs. And Bill Gates before they became apple, and Microsoft. But it's hard to quit when you're at the at the top, to me leaving the security and prestige efficiently felt like jumping off a cliff. And I didn't know what to do. So I started writing emails to the smartest person I know, dad. And I copied my my two sisters, my brother and my mom. And it became like a family affair. And week after week, I would provide them with an update on my decision of quitting to start my own firm. And every update was the same no decision. And these emails became kind of like a personal diary of mine, where I was sharing my innermost fears and my innermost thoughts and concerns about starting my practice in private with my family. At least that's what I thought. It turns out that I had a single letter wrong in my dad's email address. And for two years, I was basically spamming a perfect stranger And he was reading my emails. And how do I know this? Because one day he decided to write back

15:15

and then he really took the gloves off

15:29

to me, this became my tipping point. But some of you need a tipping point. But this was mine. And I went home that evening, and I spoke to my wife. And even more courage than calling Trisha Neve was mustering up the courage to tell her what my what my dream was. We had a two year old daughter at the time, another baby on the way. Honey, I want to quit and start my own law firm. We don't have any savings. I have no clients have no revenues. I have no staff. I don't even have an office. Will you trust me to take this chance. I looked over at her big third trimester belly, and I prepared for all hell to break loose. But my wife, she told me to go for it. It she said that nothing I ever do feels like taking the chance to her. And one of the greatest blessings in this world is to be married to someone who thinks you can do anything. Sometimes it's a curse. But that's a different speech. So with her behind me, I went to fish and leave the next day. And I told them of my plans. And nobody ever leaves Fisher need to start a solo individual practice. The lawyers, they're typically going house to companies like Exxon or Motorola and become corporate attorneys. So you can start your own practice. And in Florida, which this was around the hanging chad incident in 2000. Florida was not really considered a place where we could invent anything, we can't even get our voting machines to work. You're nuts. John, you're crazy. This is career suicide. But the harshest thing of all was that they offered to hold on to my resume in case I wanted to come back. I was not going to go back. And when I resigned, they told me that there's no stability in having your own firm. And that it was an incredibly risky proposition. Well, two years after I left fishing leave the firm dismantled. And today Fisher Neve is little more than a historical footnote. But my law firm 18 years later, is still going strong. And is the fulfillment of my longest held dream and has grown beyond my wildest expectations. I want to be for you that irritating stranger that has you take that first step

19:00

yeah, there's the irritating strangers are are helping so we take that as a sign from the universe, that it take that first step and pursue your idea. I honestly believe that my my reason for being born in this world is to help inventors. Get past that mindset that you can be an outsider. And you won't be able to bring a new idea to market because outsiders like Alex Gomez have done exactly that. Now Alex was was in medical school when he realized that that doctors were putting surgical instruments, the lenses would get fogged. So to dip them in a bucket of water, clean off the lens and then go back inside the patient. Now you guys have all people know that that introduces bacteria infections. Unfortunately, US lawyers had a solution for that we had consent forms that that said, All operations come with the risk of infection, you understand blah, blah, blah. But this was not good enough for Alex. And in he came up with a solution. And he spoke to other doctors, you're nuts. They told him, You're crazy. And they ridiculed him for not even being a doctor yet. And how dare he tried to change the medical procedures, while not fitting this perfect mold, to so he quit, he dropped out of medical school, went home, and created this this rough prototype, I remember it like it was yesterday, he brought it he put it on the corner of my desk, John, my invention works. This is going to change the way surgeries are conducted in the operating room, you have to win this patent for me, you have to win. So two years, after I filed the patent for Alex. He sold his idea for $100 million. And his invention is used in over a million surgeries per year and saves lives every day. He's done more to improve patient health and safety by pursuing his dream than he ever would have done, if he continued on to practice as a doctor.

21:46

First, they ignore you. Then they laugh at you. And then they fight you. Seems depressing. But remember, I told you this is not the entire quote. Here it is. Then you win. Persist, and then you when we give our fears, fancy names. We convince ourselves that dreaming small and dreaming safe is being realistic. And that giving up on our dreams is being practical. I mean, an engineer, and we have a cost benefit analysis that people do this with with with their dreams as well. They convinced themselves that the cost of pursuing what they want is simply too high. The greatest cost they say is death. No, we're all going to die one day. The greatest cost is dying. With your unfulfilled dream. suffocating inside you. Remember the words of John Ruskin? In the end, it's a little consequence, what you believe, or what you know, or what you think the only thing that matters is what you do. So I'm here today to be that irritating stranger for you. To push you out of your comfort zone, to have you take that idea that somebody had a problem and asked you to solve. And I know you guys, you're like MacGyver is almost you like conjure up ways to get things to work. But then you play small, you convinced yourself that anybody could have done this, you convince yourself that this is something that not only could anybody have done it, but that somebody else has already done it. You don't take that step of having a patent search done to determine whether the idea is actually new. I see this day in and day out as a patent attorney, I mean, a cardboard sleeve that goes on a cup of coffee that was new that was patented, made a million dollars a year for the inventor for the life of the patent 20 years, reversing the label on a ketchup bottle, so that consumers would store the catch up upside down and you wouldn't have to hit the back of the bottle. That was not done until Paul Brown patented it and sold it for $13 million. The stuff that you guys are doing in the laboratory is of such importance it's not helping catch up not get stuck to the bottom of a bottle. It is it saving lives literally saving lives. I can't remember the statistic on the number of patient deaths that are caused by by Doctor errors. And if as Dr. Strickland said if simulation is only was I didn't even know this was only considered as something for airline pilots. Where it's it's absurd. that this field is where it is now, I absolutely believe five years from now it's this conference is going to be held at a stadium somewhere if nothing else. So if you have, what I urge you to do in closing, is to find that courage to pursue your dream. Escape that great Twilight, Ignore the naysayers and win. Thank you.

25:45

Yeah, so there's there's two types, there's a design patent, which protects the look of an invention. So for some of your ideas, it's the look that's unique. Design patents are about three $4,000. The other type is the function is what's important the way it works. So that's a utility patent. And utility patents are roughly about 10,000.

26:13

Well, one of the more common ones, present exhibit A, and it's, you know, not Scott's mistake, but I see this happening yet, fortune 500 companies, they have turnover of the people that are supposed to watch these dates. And if you file a provisional patent, it's only good for 365 days, if you let it get to 366 there is no zero forgiveness and that those rights are gone. In my early days of practice after there was an inventor because of Hurricane Andrew. His warehouse was devastated. He lost all his documents, he was living in a tent city. And we thought if ever, there was a justification for missing the 360/5 today is that, you know, your patent examiner, there's an act of God that causes this us to miss the state. And the petition was denied. So I unless you reason can trump that I can't imagine salvaging that. So that's the biggest mistake.

27:22

The law has developed because of the Gatorade situation at the University of Florida who's a medical professor that was not under a contract to turn over ownership to the university. And because he used the football players as guinea pigs, he was able to ask for inequity, or the university was able to ask for a share of his profits, because he use university resources. So if you don't have an agreement, the most important thing you can do is try to make it absolutely clear that you're not inventing on company time, or company resources, don't use a company phone or company laptop, if there's a laboratory, you just cannot use that laboratory or they would have an equitable share. But things have gotten much worse than that. Because now, after that case, all employers or large employers are asking employees to sign an employment agreement, which says anything you invent, in or outside of the workplace belongs to them. And it doesn't matter what your position is. They're stating that you are hired to invent and that to In fairness, they need to get the benefit of the bargain. They hired this person to invent and if he invents something, it belongs to them. In the early days, it made sense. You hire an engineer or a software programmer, you want him to program. But if you hire a janitor or a secretary of forklift operator, I've seen these clauses in all of these contracts. So who would hire a forklift operator to create an invention it just defies logic, but a contract is enforceable contract is a contract.

29:06

Yeah, so like for initial protection, you can file a provisional patent immediately, I will do that as soon as possible. However, if you start disclosing their provisional patent, and if it's not seen as being adequate, and it doesn't meet all the requirements, that provisional patent has the full requirements as the full patent, then you could jeopardize your idea. So for initial idea of protection pilot, and then as soon as you can have a professional, provisional patent drafted, or go straight to a non provisional, but it's only it's, you know, it's temporary protection to proceed. But sometimes speed is with the first to file speed is everything. And even though yes, the patent needs to be proper and meet the requirements. But if the choice is between having a patent that's sloppy that gives you a chance at proving your case in court versus not filing and have somebody else file first. And if speed is going to be on your side, if you do it yourself, then file it yourself. But as soon as you're able to have it professionally done, have it professionally done. And if you can limit who sees it, while you're relying on your own patent, that's better. For

30:27

you, unfortunately, yes. It's what it's, it's, it's called public disclosure. So the only way around that is, if you would have everyone signed a nondisclosure agreement, then the argument would be this is not public disclosure. But certainly any kind of speaking any kind of presentation. And it's, it's, this is easy advice to give, but it's hard advice to take. Because when you have something new, the doubts of does this even does anybody other than me even see a need for this. That's one of the reasons I have clients all the time that have posted something on a on an online forum, because they wanted to know, they thought they were the only ones that needed this device. And before they spent a lot of time and money. Patenting it, they wanted to know if others would purchase it. So they're trying to test the market. That's that's a huge risk, especially after first to file because somebody else sees it and files in there. They own they own the idea.

31:25

So it's the best way is to have a patent search done by a by a patent attorney. It's extremely risky to do searches on Google, because the terms you type in might reveal the idea. And a lot of marketing companies that they actually have, there's human beings behind them that might see search terms, and especially like never do a search term on Amazon, because they have divisions looking for searches that don't result in purchases, so that they can enter new markets. So but that's the same thing with with with any search engine, but if there's ways that you can search without giving away the idea, it's just so hard to follow this advice that I the safer approach is not not to do any online searches. Unless you can do it in a way that doesn't reveal too much. Okay, thank you guys. You guys have been wonderful.

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