An ugly situation recently arose out of Chris Hooley's "drinkbait" campaign at Pubcon (which was not only a great idea, but a well-executed one, to boot). Liana Evans developed a remarkably similar campaign called "hatbait" that she began at SES Chicago. Until tonight, when I read Chris' post on the subject, I had assumed that the two were connected and were benefiting the same party. That's not the case:
...after our conversation (which I assumed was in confidence) she wrote a blog about how “I was upset about her HatBait fun” and everywhere I saw DrinkBait, she was right there with HatBait. She even started to downplay my original idea in our “controversial” conversation and on her blog. To me, it looks like she is trying to one-up me on purpose.
It’s frustrating, and I am not sure what to do. I don’t want to be known as the guy who gets in blogger flame wars and I don’t want to be a crybaby, but since she’s the one blogging about it, she wrote the story as people will remember it from her point of view. I already know this: I can’t win in this situation.
Now everywhere I look,”her brilliant idea” is popping up. Kudos to her for putting so much into it, but seriously, it is hard for me not to feel slighted. I wanted that so bad. I told a few close friends, and Liana, about what I would be doing with my career and I was really excited. I feel like she knocked the wind out of me, and I have been pretty bummed out about it.
Liana mentioned this on her blog as well:
Apparently, I've upset Chris Hooley with my HatBait fun, for that I deeply apologize. Some people have come up to him and said I cheapened and made his "DrinkBait" spammy.
I will admit, the name I idea I took from him. Its easy to remember and it explains it exactly as it is...
...There was no "spam" intended, there was no "copying" intended, and if people wanted to link to what I did - GREAT!...
...The hats - were not his idea (if you know Chris, hats just aren't his thing) - they were mine, the contest was mine, linking back to folks was mine. The concept - was totally and undeniable Chris Hooley's, the guy is a great out of the box thinker. I just modified the idea to try and include everyone else and put a different spin on it to make it fun for everyone.
So, for the concept of HatBait, please thank Chris Hooley. And again, Chris, I apologize and hope you continue with your crazy fun ideas.
I don't want to start a conversation on loyalty or friendship here - I've run into both Chris and Liana several times (at conferences) and while I'm not personally close with either, have always felt that both were great people that I'd enjoy spending more time with in the future. What I do want to address is Chris' intellectual property quandry.
Assuming Chris' story is accurate (which Liana's post appears to verify), he created a business idea that was easily patent-able. The components include:
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Taking photos of people holding up signs or items showing off a URL ending in "bait"
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Posting those photos on the web
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Marketing the images as something bloggers and websites would link to after the event
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301'ing the URLs back to his own site and running a blog that covered the various events
I won't argue about the value of the idea, but it certainly has enough unique qualities to make it protected by law (if my interpretation of what our lawyers have told us in the past about these sorts of things is correct). I don't have enough of a legal background to know if Chris could, conceptually, claim rights to the idea and gain control of hatbait.com in a legal dispute, but my intuition tells me that if we were talking about Perez Hilton and Jason Calcanis, there'd be a lot of lawyers in the mix.
Over the last year, we've actually dealt with some similar issues at SEOmoz. We've got a few great ideas under our collective caps and protecting these until they can bear fruit is no easy task, particularly for a small company. I must say that I empathize with Chris here - I know how frustrated and angry I'd feel if someone else had created a "sandbox detection tool" over the past 6 months while ours has been out for repairs, or if an SEO tool had slightly modified Page Strength and attempted to launch that. Would we sue? Honestly, I don't know.
This brings me to my final thoughts - how do you protect yourself against intellectual property theft? What should Chris have done? Is there something that we should be doing at SEOmoz to protect our ideas and how do those apply to the web community as a whole?
I have little doubt that many, many people who read this blog are constantly brainstorming clever ideas for their businesses, the web, and their connections, but how many of us are taking these seriously enough?
p.s. My personal take on the hatbait v. drinkbait controversy - had I known the full score, I probably would not have participated, not out of any angst toward Lianne, but rather respect for what Chris had put together. I know how I'd feel if everyone started linking to an SEObooze Page Toughness Tool. My suggestion to both parties - let it drop and move on. Liana can definitely come up with another idea to pursue (she's a very smart lady) and Chris can stick with his "bait" at the next show (fingers crossed that it's sock-puppet bait and I get to wear the Mike Grehan puppet
) and bygones will be bygones. Just look at what Chris has already done with his "so-cheesy-but-I-can't-look-away" SEO Boy Band post.
I think we should start a new term for SEOmoz...
come on you know what it is ...
NOISE BAIT !!
Oh no, I can see the parody sites now:
SEOnoise
NOISEmoz
NOISEO
Make it stop, please! ;)
**Goes to register numerous domains...
I'm not sure if this constitutes noise, as Rand was at least trying to start some discussion about intellectual property. That being said, I know this is a serious matter to those involved, but to an outsider like myself this whole thing is just pretty silly. Just a whole lot of words about something that isn't really that important in the grand scheme of things. Also, I don't really know if there is anything outsiders can contribute to this discussion since it's just one person's word against another.
Drama over SEO drinking contests? Silly hat gimmicks?
What was that post a couple days ago about the increasing signal-to-noise ratio on SEOmoz?
The original intent of the post was to discuss Intellectual Property in regards to SEO and Rand used this instance to demonstrate his point (and to garner some attention, which is working if you use comments to gage how much users interact with the topic)
Controversy stirs up links, which can be great linkbait. AND IP is something not talked enough about in the SEO / SEM world.
One of the reasons SEOmoz is highly regarded as the premier SEO blog is because it allows enough noise to keep people engaged. There are a ton of SEO Blogs, many of which stay strictly on topic. These blogs have not seen the same growth or popularity as this one has, I think because it is usally the same stuff across the board.
I think the concensus was that most of us need a little noise with the signal to keep it light while discussing occasionally heavy topics.
Hooley has always been an innovator.
Bottom line is he trusted someone and got burnt. And in typical fashion the culprit makes it sound like it was the others fault for sharing.
Karma will bring plenty of more opps to hooley, and see that the idea stealer gets hers The free press for Hooley is already to his benefit.
Strictly on topic (because Li is a Lady I Love, and Chris is a super sexy SEO after my own heart with his Boy Band) I don't think there's anything legally enforceable here.
If there weren't any non-disclosure or non-compete agreements in place, then any ideas shared were probably (legally) available for duplication/recreation. For creative intellectual property, which may be more difficult to patent than processes, forumlas, etc. those become important. For maximum enforceability, there should be a patent pending (actually receiving one can take years and a good amount of legal fees) for forumlas or processes, a copyright for printed information, or a trademark pending for unique names or service marks. In the US, there is some level of protection in the "pending" stage for all three.
For information or tools that you don't want disseminated, lock them up behind a members area where members have to agree to terms stating they will not redistribute or modify them in any way without express, written permission.
omg I love a woman with brains. *swoon* Especially one who calls me super sexy.
It is an interesting discussion, whether it is enforceable or not, but regardless I wouldn't try and go after her for it. I was offended that she copied the campaign because I told her the whole shebang in private, AFTER making her promise not to say a word. If anybody else in the world did it, we probably wouldn't be having this discussion... because they would have seen it in the public domain and copied it and we all (including me) would have laughed about the bad replica.
My issue is not one of enforceable Intellectual Property Laws or Copyright / Trademark Infringement. I was upset because somebody broke a code more sacred IMO... a promise from a friend to keep a secret.
However, if this was a venture that directly generated revenue, you bet I would sue for damages. Also, this thread would have taken a different tone... probably the one Rand initially intended.
This is silly. Both parties are taking themselves waaaay too seriously. Who cares about IP rights on this, it would be foolish to bring it to court. Both parties should just admit (at least to themselves) that it was a self-serving gimmick, and enjoy the success of it. Then, forget about yourself for a moment and get into the spirit of the season and buy some really cool toys and donate them to the local battered woman's shelter. Giving selflessly to those in need is a really great way to assuage a wounded ego.
Peter, that's just not true. I don't take myself seriously at all. I ran with a joke, a gimmick if you will (I prefer shtick) to garner some attention and have some fun. There is no faking that. I wanted to keep doing similar things, and even saw a way I might be able to work it into my future.
The only reason I even blogged about it is because I was burned by a friend. Intellectual Property (IP) was the discussion most relevant to SEOs and marketers, which is why (I think) Rand focused the discussion in this direction.
Protecting an idea is an important topic which I think some of us cowboy internet marketers may forget at times. This was a good example of why, even if the subject matter (hats or drinks) is not serious.
Believe me, I've been in that situation before. You're taking it to a level of absurdity. One bit of golden advice a trusted advisor of mine gave me when I was facing a similar situation a year ago was "there's no sense getting into a pissing contest with a skunk, he'll ALWAYS cover your scent with his stink."
Thanks for the best comment I have seen in my opinion on this matter. Let’s get over it...it's not like this is the telephone being invented here. I guess next the winning contest for Barry's Cartoon Barry blog will be targeted for idea-theft? (oh wait, is that the same Chris?!? ;) https://www.cartoonbarry.com/2006/11/winner_of...
I liked both ideas and I think they both came around too close to each other to be called thievery, in my personal opinion. The only thing I didn't like was that I wasn't on the list for the Drinkbait...I coulda used a few belts in Las Vegas. :p
Bottom line: There are idea people, and there are those who copy them.
Jill I have been copying you for years!
Okay it speaks well of the comments that of 48 comments no one suggested Master as one of the bait options.
But hey I love the low road.....
Hehe, my mind went there, but now that people have a face to place with the ramblings...
BTW, in my previous comment, I can spell "formula" but sometimes my brain and fingers get into a competition. Fingers won that one.
Now that you have shown yourself in public I hope we get to see you more often.... NYC SES is fun too... and I can be the train guide!
Poaching ideas is an action that you hope your confidentes will not do... otherwise we lose the ability of open discourse... in this situation it seems permissions were sought and seriously as soon as it was out in the public variations were bound to appear... in truth the beauty is in the social nature of the action. There should be more people in the space, if Li's roadshow impish photobiography fun in Chicago are any indication. Why not Cabbait... you pay for the cab ride for a goofy photo. Take it national... hell global... watch out YouTube, Watch out MySpace... hell sell that to Yahoo! their rank is slipping.
I sure hope you go and register CabBait ;) You live in the city that's so well known for their cabbies *hehee*
Who do I sue to get my time back from reading all this!!
Adam... Are you joining the SEOmoz is too noisy crowd? My heart is sad. :(
When it's good, its good! :-P
i understand the whole IP discussion and the concept of someone biting your work, which isn't cool, but doesn't this fall into the whole "you can't copyright look and feel" argument?
besides, if (the other) Chris IP protects drinkbait, doesn't that open up the opportunity for some enterprising individual to IP protect the concept of linkbait itself? no, perhaps not... but it sounded good. ;)
Thanks for he write up Rand, much appreciated!
I've already moved on with it. It ruined my weekend, yeah. But it's had enough of my attention.
The story is a little deeper than somebody stealing a marketing idea. I fully expected SOMEBODY to step up and do some crazy things like this sooner or later, I just didn't expect it to be the one friend to whom I gave the blueprints after being sworn to secrecy.
Did I handle it perfectly? No. But to my defense Li, I didn't really get pissed in that instant message until you started to dis the original idea, saying "i've added in a contest as well so there's some difference - you did your's for complete gain for YOURSELF" - I was already a little upset, and you made me feel like a jerk.
I wish it didn't go down this way, I hate being in a situation where I just cannot win. If I address it, I am a jerk. If I don't, Liana is a "genius" and gets all the link love, credit, and reputation. Jealousy is lame, and I am embarrassed that I feel it. I feel like a little kid on the playground, because this seemingly struck a core nerve that is so basic.
Let me address Liana's points here, so we can all get on the same page.
1) Chris registered a ton of names all rhyming with "Bait", that he told me, to do different "stunts" with them.
oook, so I told you about my idea
2) I approached Chris about this BEFORE I went to SES Chicago and told him what I was doing - HE DID NOT OBJECT. Had he, I would not have went forward.
What can I say? I am not going to tell you what to do. I was trying to be political about it by offering up a handful of different NEW ideas that were not a complete rip off... if you remember that conversation I was talking about a survey to find out if you are a white hat or a black hat [with a little joke at the end] and a few other ideas...
I can't tell a grown woman from across the country "no liana, you can't do that". I was trying to be cool, political, and use all my social graces to sway you towards doing something UNIQUE. I already knew you where chomping at the bit to do something like I did, I was trying to give you something new.
PLUS you did not mention the part about taking the pics with said person displaying your domain name. If you told me it would be a near complete rip off, it would have been easier for me to say so before it happened.
To be honest, I was relying on you to use that "affiliate marketer's / SEOs code of ethics"- the one when a friend tells you "I work in this vertical" it's kinda off limits. If you see it in the marketplace, different story, but when a friend tells you- it's something you leave alone. It's like your friend's girlfriend. You just can't touch it. (*note- new blog about that coming soon)
3) I did this for three purposes: a: To first and foremost HAVE FUN b: To meet people c: To help out Chris c'mon Li, seriously? This whole thing was done for me?
Be honest about your intentions here. When you found out exactly how many links / connections / impressions / even friends I made from that stunt, you did one too. This was not a $25 gift certificate for charity thing.
i. on most occassions when introducing this I said "Have you heard of DrinkBait, well the idea came from Chris - he is one of the bloggers and SMG and I'm hoping this will get people excited about what he does next, wait till you see what he does next"
Did you ask me if I wanted you to represent me by forcing people to wear a fake fuzzy cow mask and a tiara? In all honesty, I don't want to be remembered for HatBait. Now people are waiting for me to do something as loud and hokie as that, and I'm not sure it would fly. When we spoke it was apparent that you really do not understand that you can't just come in with a hokie idea to represent me with. It cheapened my angle, badly.
Plus, there were so many little things about DrinkBait that made it make sense, and HatBait only took the steam and sizzle. DrinkBait RHYMES. DrinkBait was spontaneous. People already knew they were getting drinks from the contest. DrinkBait was in Vegas. DrinkBait bent the rules of the contest on purpose, kinda like SEOs do on occasion to SEs. DrinkBait had a few outside the box pieces of the idea that brought it all together and got a positive reaction. HatBait? There are so many things I just didn't like about it but I don't want to sit here and slam it, but it was a knock off and not original.
4) I never, ever asked for a link in return. The picture with the domain name was so it was easy for people to remember. I also never asked to have myself in the picture.
I didn't ask for links either... I don't appreciate you using that in your blog(s) as an angle for my your idea was ok and mine was not.
5) I gave links in return.
Almost every person that I baited that did end up getting links from me. Nice, inline references and write ups, not "list type" links. I also pulled all of their blogs into my feed reader and started contributing. I even sent thank you emails to those patient enough to let me do my thing, as I know it was a little obnoxious and people were very cool with it. I honestly appreciated the people who participated and showed it.
6) I'm giving a prize in return, not obtaining one.
c'mon. Now I am a jerk and you are a saint? I bought them drinks in Vegas. Nothing wrong with that. I spent hundreds on drinks, aren't you giving away a $25 gift certificate? Half these people are loaded. Very few people would be motivated for a $25 gift certificate to Bed Bath and Beyond...
7) This was aimed at including everyone, new and old timers, speakers and conference goers - not just the "A-listers".
I didn't design the SEO Drinking Contest... that was Nate from SEO Thursday and the idea as is was pretty much perfect for what it was. It was hilarious and it was my excuse to do DrinkBait, you didn't really have an excuse.
Anyways, I really don't want to argue this anymore. I blogged about it. I got it off my chest. Remember, Liana wrote about "the controversy" first, taking our personal conversation public and reporting it as news. Also for the record, I was not part of HatBait. It was Liana's "tribute" I guess. I did speak with liana and tell her exactly HOW to do it, but I didn't think she would do it exactly the same way.
https://googlefight.com/index.php?lang=en_GB&w... I think you win anyway...
LOL ... Good one but that's not what I go by the most anyway ;)
Not sure about that...
https://googlefight.com/index.php?lang=en_GB&w...
Hah, close one :) Is it getting hot in here?
We would never have gotten a cell phone if someone hadn't decided to "copy" the home telephone.
Ah, but what a better world it would be... Sorry almost got hit by 2 people last night talking and driving.
Hi Rand --
So let me address a few things here, this goes against the advice of some very good friends in the industry I was going to let this die, because I did not want this to develop into a flame war, which Chris has now seem to have done.
1) Chris registered a ton of names all rhyming with "Bait", that he told me, to do different "stunts" with them.
2) I approached chris about this BEFORE I went to SES Chicago and told him what I was doing - HE DID NOT OBJECT. Had he, I would not have went forward.
3) I did this for three purposes: a: To first and foremost HAVE FUN b: To meet people c: To help out Chris i. on most occassions when introducing this I said "Have you heard of DrinkBait, well the idea came from Chris - he is one of the bloggers and SMG and I'm hoping this will get people excited about what he does next, wait till you see what he does next"
4) I never, ever asked for a link in return. The picture with the domain name was so it was easy for people to remember. I also never asked to have myself in the picture.
5) I gave links in return.
6) I'm giving a prize in return, not obtaining one.
7) This was aimed at including everyone, new and old timers, speakers and conference goers - not just the "A-listers".
I question now my choice of domain names - should I have used one of the other two? In retrospect yes - but at the time, Chris was one of the bloggers on SMG, and I was trying to promote his idea and get people wanting more.
Why did I remove Chris as an Author on SMG, when you are trying to have a calm and civil conversation (which totally blind sided me because he did not object until I came back from SES), he says F*&k You! when I did not take that route at all. I decided to protect SMG first, whether his intent or not I did not want to take a risk. I also did not pull him down from SMG till several days later (Monday in fact), our conversation happened on Friday after thinking long and hard about it.
Again - it was NEVER my intent to "steal" Chris' idea - it was to continue the promotion of Chris. Several people have heard me say what a great out of the box thinking he is, I told people what he's done with NextStudent is amazing.
I did several thing totally different than Chris for HatBait, things he'd never do. I also knew the audience at SES is much different than the audience at Pubcon, a lot of folks wouldn't have liked the liquor and stated that to me as well.
Chris didn't have objections to this until I came back from SES on Friday. He knew about this before I did it, and never said "Do Not Do It", or "Don't Use That Name". His concept when he told me, focused around "rhyming with link" - mistakenly because hat doesn't rhyme with link, I thought hat would be OK because it didn't intrude on his original concept and I thought I was HELPING, when Chris didn't object ... I again thought it was OK.
Alright - there's a full blown explanation. Which I think I will now go post on SMG.
So... you took his idea. Thank him again and let's move on. I don't think anyone's retiring from hats or drinks.
I did on the post that Rand pointed out. :)
David Wallace makes a good comment on Chris' blog about Jim Boykin coming up with the idea of taking pictures of fellow SEOs he meets many moons ago. I personally see the ideas as unique and non-commercial enough to not be a problem.
I didn't know that Chris was planning to make money out of the idea, I see it as just a fun conversation starter and way to meet people.
If I'm going to get sued, that chucks my idea for SES London right out the window :)
Dang it. That kills my StinkBait idea for Affiliate Summit.
Guess I can start taking showers again...
LMFAO! I actually tried to register that one too, but it was taken. StinkBait is already somebody else's IP (Intellectual Property)
Hahaha!
When the hatbait thing started as SES I thought it was a way to win the contest that Barry Schwartz had written about on his blog a week or so before the event.
Since I did not attend PubCon I did not know anything about drinkbait but Li told me about it... both are fun concepts... I will always have a pic taken by someone buying me a drink - and the hat thing was a lark and Li really worked it and made some late nights at the bar a lot of fun... Neither of the ideas is going to make you rich.... and both should still get you links when put to use. Maybe split up your areas if it is that much of an issue... one work PubCons the other SES.
Roadies - hahahah.... very good point. Do we take the entire story at face value, or read deeper? I guess we'll never truly know. ;)
Assuming we take the face value, I would have to say 'Take your licks, and move on'. It was a simple idea that anyone could implement. Worst thing you can do is go telling people about it. Even if you THINK you trust 'em, just don't do it.
Keep your great idea's to yourself, and unleash them in unknown areas, with various alias'.
Very true. SEOmoz is pretty good at this with their clients. Another good example of someone who very effectively executes this strategy is Shoemoney.
Shoe can't keep a good idea to himself.... he explodes with them - lol... now don't have your sister hunt me down Jeremy!! I think she is the terminator in the family.
This has been a very interesting thread. It just proves that controversy makes for good linkbait. Cheers to Hooley, hat tip to Liana, and kudos to Rand! You're all winners for taking a great idea further, pushing the controversy, and getting even more links than expected, whether intended/wanted or not.
Rand should start a new site called "mediatorbait", it would be like Maury Povich, only online.
I like the mediatorbait concept... and I had not heard about drinkbait but as soon as I saw and heard about hatbait I was thinking what other domains I could buy... the concept of the domain and the execution could be attempted to be patented - trademarks just apply to the name... the concept of how it works needs a patent and they are hard to write up and costly to et pinned down... you are actually better registering the patent and hoping someone steals it - so you can sue and make it cheaper to be bought off.... it is like getting domain names from squatters... the subtle variations are fair game and if you could agrue your claim it costs money - more money than you can spend just buying the thing from the squatter.
Hmmm. So the comments aren't going in the direction I had hoped, but that's alright. Is there anyone who's familiar with Intellectual Property rights issues or can point us to some resources?
Or, on my other question - if Chris had wanted to protect his idea, what steps should he have taken to make it harder for others to replicate?
I am not a genius on IP rights as pertains to the web, but I know it is semi-enforceable for ideas, and very enforceable for algos (via patent)and the like. The whole problem is, without a trademark to infringe upon (via dilution, which would be the drinkbait vs. hatbait solution if it is for a similar "service"(it is)), it is all up in the air. Sounds like there were some verbal contracts and IP sharing from the beginning in good faith and that was violated. Try proving one or the other in court! The only way to truly protect your IP rights is to tell noone and go public once you refine your ideas offline. Not very good for creativity though (one persons input), and not good for ending up with a user friendly site. Thanks for bringing this back on track Rand, though I am guilty myself...everyone likes drama
PS as I said, not a genius on this, just throwing out some ideas and angles
I am, but I'm not going to go into massive detail on IP stuff. Although I'm now thinking putting a bit in the book about it would be good.
Anyway, simple way to protect yourself:
1) Write down EXACTLY what the business plan/idea entails. Make two copies. 2) Put each in a self addressed envelope and get it sent to yourself recorded delivery. They'll then be time-stamped, and admissible in a court as evidence, proving the date it was sent on. 3) Take the sealed envelopes, DO NOT OPEN IT, and put them in separate safety deposit boxes, in two separate places.
That will legally protect anything IP related.
If you want to know more, check out: https://www.businesslink.gov.uk/bdotg/action/l... and https://en.wikipedia.org/wiki/Intellectual_pro...
Thanks Pete - good advice. If you publish on the web and show the server logs (or Google indexing date), would that work as well?
I've heard that anything published on your site is automatically copyrighted... True?
Yep. The basic trick is this: you can't copyright thoughts only things (such as written documents). If you write it down and can prove date of origination-you have an implicit copyright on the material.
Keep in mind though that if someone else has the same or similar idea that they move forward with, you must be able to prove that they had reasonable access to your documents/work in order to substantiate copyright infringement. This is one reason why submitting a copy of your documents to the US Copyright Office is better and much more enforceable than mailing a copy to yourself: it creates a legal record that can and should be uncovered by the due diligence of any offending parties.
For more info, you can check out the US Copyright Office FAQ.
Yes, it's technically fine. Any IP, as soon as it is recorded in some form, is in copyright. But I'd still print off a couple of copies of the log, just in case. The problem is, logs, images, etc... they can be tampered with. And a defense team would raise that, which makes it possibly inadmissible.
Anything that could need protecting, protect it. Why take the chance, when it costs so little to protect it?
Anything published on your web site is not copyrighted automatically. You need to claim authorship, have a copyright mark, provide proof of publication date and a bunch of other things.
Too many people think you write it and 'publish' it is yours.... a lot of public domain issues etc.
I've always heard that if you are going to parody an idea or a logo that you should have 7 distinguishable points of difference in your creative from the original if you want it to stand on its own with regards to intellectual property.
For example: Infringement takes place when... Where mark X is not identical to a registered trademark, the use of mark X may still amount to an infringement if it is "confusingly similar" to the registered trademark. Mark X may share elements of spelling or style that would lead a reasonable observer to believe the trademarks were related.
What are the 7 points of difference in the hatbait vs. drink bait? Other than the name I'm not sure I can count anywhere close to 7 points, two tops, right?
1.) One is hats, one is drinks 2.) One takes pictures of SEO folk with hats, one with drinks
Am I missing anything here?
Seems like hatbait is straight bitin' drink baits steez to me.
Anyone else think this post was about some kind of server problem to do with sites on the same IP address?
Not much you can do to protect ideas like this IMO. Even if something is patented you still have to be able to defend it.