Gearhart Law Client Loliware® Wins Big on Shark Tank

written by Elizabeth Gearhart, Ph.D., patent agent at Gearhart Law

Summit, New JerseyGearhart Law, a New York area-based IP firm specializing in patent, trademark and copyright law, is pleased to announce that its client, Manhattan based Loliware®, won funding on the October 2, 2015 episode of Shark Tank.   Chelsea Briganti and Leigh Ann Tucker were in the midst of a one million dollar raise, having raised four hundred thousand already.  Gearhart Law helped them file their patent application before going on Shark Tank. 


They asked the sharks for $100,000 for 10% of their company, but Mark Cuban had other ideas.  He offered the entire rest of the raise, 600K, for 25% of Loliware®.   Three of the other four sharks wanted in.  Deals were flying!  Barbara Corcoran gave the most convincing argument of why she and Mark would make the best investors.  Mr. Wonderful and Robert lost out, but they’ll recover.


What is Loliware® and why were the Sharks so excited?                                     

Loliware® is a new breed of cup, one that’s both edible and biodegradable.  You can have your cup and eat it too!  The Sharks loved the taste of the cups, which was a big plus.  A part of the motivation to develop these cups came from a desire to keep paper products out of landfills.  Imagine a party where you don't need trash bags!  It also helped them that they had a lot of interest from and contracts with distributors, including the party planning company “Save the Date” and another company, a large food distributor, who saw them at a tradeshow and make a deal with them.


To find out more about Chelsea and Leigh Ann and to order Loliware®, you can visit their website at   




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About Gearhart Law   

Gearhart Law is an intellectual property firm headquartered in Summit, New Jersey, with offices in Manhattan and Philadelphia, specializing in patent, trademark and copyright services.  The firm’s expertise lies in drafting and prosecuting patents, trademark filings and prosecution, drafting and reviewing licenses and agreements, conducting due diligence for both investors and entrepreneurs, drafting legal opinions, patent, trademark and copyright enforcement, and other legal matters related to IP.  Gearhart files both domestically and internationally and has attorneys who speak multiple languages.


Gearhart Law has over 20 years of expertise in the area of consumer/industrial products and life sciences, as well as software and chemical arts.  The firm’s clients range from individual entrepreneurs to global businesses.  


Gearhart Law’s headquarters is located at 41 River Road, Summit, NJ 07901.  For more information, call 908-273-0700, email or visit the website at and the blog at



Women Entrepreneurs Week Panel

                                          Women Entrepreneurs Panel                                                                                     


     Elizabeth                                       Joan                                       Michele

FDU is hosting a 3-person panel discussion of the challenges and successes of life in the entrepreneurial world.  Join Elizabeth Gearhart, patent agent at Gearhart Law, and social entrepreneurs Joan Desilets and Michele Joseph.  

Elizabeth helped start Gearhart Law in 2006 and has been heavily involved since then as it has grown to include 10 employees and over 1000 clients; hear what worked and the lessons learned.

Joan has her own business making jewelry, but not for her own profit.  She sends the proceeds of her sales to Africaid to help young women in Africa through educational programs.

Michele founded SGAP, or “Student Global Ambassador Project”, where she organizes leadership conferences and visits to the United Nations for students.

To hear more of these women’s stories, join them at Fairleigh Dickinson University, Florham Campus, in the Hartman Lounge in the Mansion on Thursday October 22nd from 6-8pm.  The address is 285 Madison Avenue, Madison NJ; ask the guard at the gate for directions to the Mansion.

For details and to register contact Timur Pakay at the Rothman Institute of Innovation and Entrepreneurship, Silberman College of Business, at or 973-443-8887.


Is your server ready for hurricane season?

written by Elizabeth Gearhart, Ph.D., patent agent at Gearhart Law

Is your server ready for hurricane season?

If you’re starting a new business, there are many ‘infrastructure’ types of things that need to be addressed.  One of these is data storage and access.  As businesses grow they may add servers to handle the data files.  A few common questions about file server storage and maintenance are:

  • When does your small business need a server? 
  • Where should you store your server and who should maintain it? 
  • What happens to your business if the server goes down due to a malfunction or power outage?

I recently attended a tech conference and met a couple of people from NYI (, a company that helps small businesses with data handling solutions.  We had an interesting discussion about servers; I found the person I was speaking with very easy to understand and relate to, and as a non-tech person (I'm an analytical chemist) I learned a lot from our conversation. 

Some of the points that came out of our discussion, and from my own experience working at a small firm:

  • Your business needs a file server when more than one person needs access to the same data files. 
  • You can buy your own server and maintain it yourself, but there are many issues with this and at some point you will most likely need a ‘tech person’ to help you with it. 
  • Your server going down is one of your worst tech nightmares.  If your server goes down you can’t access your data!  For us at Gearhart Law, that means not being able to work with our client files.  But we have our ‘tech person’, more than one, actually.  And we have secure, redundant storage for all of our files. 

So what happens when the power goes out?  Ideally you have a backup generator so your system won’t go down.  If you don’t have a backup power source, then you may want to consider off-site storage at a place like NYI.  They have storage in multiple sites around the country, including NJ and NYC.  You can have them supply and maintain your server, or you can store your own server there and visit it whenever you want to. 

What’s so special about NYI?  I thought they were easy to talk to and understand, and they have full power back up for their sites – battery backup for the first few hours, then diesel generators until the power is restored.  You can bet they got a lot of new clients after Hurricane Sandy!

Hurricane season is right around the corner but having the right infrastructure and protections in place for any disaster is a key to a successful business.


Global business - focus on China


written by Elizabeth Gearhart, Ph.D., patent agent at Gearhart Law

Join us for an engaging discussion on the best way to do business in China - how to get your product manufactured there, and how to protect it from patent infringement.  Our panelists include a product developer from Short Hills, New Jersey, who routinely has items manufactured in China, and a Chinese Intellectual Property Attorney.  The event is Thursday, June 25th from 6-9pm in Manhattan at Adelante Studios on 31st St. by 6th Ave.  Register at:

The event is free and Gearhart Law will provide refreshments.  We're looking forward to an enlightening discussion and a whole new roster of business tactics!

Conducting Business in China panel discussion and networking


On Thursday June 25th, 6-9pm, Gearhart Law will be hosting a panel discussion in Manhattan on conducting business in China and Intellectual Property protection.

To sign up, go to:

Our panel will include Josh Scharf, an industrial designer who routinely manufactures products in China, and Chenyan Wu, an IP attorney licensed in both China and the US .  The topic will be "Intellectual Property Protection and Manufacturing in China".


6:00 - 6:30 pm  Networking

6:30 - 6:45 pm  Introductory remarks

6:45 - 8:15 pm   Panel discussion - IP Protection and Manufacturing in China

8:15 - 8:30 pm   Questions

8:30 - 8:45 pm  Networking


              Josh Scharf
    President, Archetype Ltd.

Josh Scharf is President of Archetype Ltd, a new product development, manufacturing, and distribution firm located in Short Hills, NJ.  Mr. Scharf has been working in the field of Industrial Design for four decades.  He has been involved in the development of hundreds of products for a broad range of industries.  He has been manufacturing in Asia for nearly 30 years working with dozens of factories internationally overseeing the production of everything from hand-blown glassware to cast metal furniture and to complex power tools.  He has taught Industrial Design at the university level and regularly lectures about creativity, manufacturing, marketing, and product development. 

       Chenyan Wu
  Partner, China PAT Intellectual Property Office 

Chenyan WU is a partner at China PAT Intellectual Property Office in Beijing.  She is licensed to practice patent work in China and also passed the US Patent Bar Exam.  She has more than eleven years of work experience in the field of intellectual property including one and a half years working at a patent firm in the US and a two-month internship at a multinational corporation based in the US.  She has a bachelor’s degree in Electrical Engineering and received her master’s degree in intellectual property at University of New Hampshire School of Law (formerly Franklin Pierce Law Center). 

She has extensive experience in patent matters, covering prosecution, invalidation and opinion works.  She helps multinational corporations protect their intellectual property worldwide, including IP strategy, patent portfolio management, and enforcement.  Her firm ranks first worldwide as top PCT filing firm in 2012 and 2013.


Apple v. Samsung - the IP fight goes on

          APPLE V. SAMSUNG

written by James Klobucar, Esq., patent attorney at Gearhart Law

A long time ago in a galaxy far, far away…there was no such thing as the “smart phone wars.”

The Court of Appeals for the Federal Circuit (CAFC) recently handed down their most recent decision in the highly publicized clashing between the two tech titans. Samsung had appealed the district court’s approximately $930 million judgment in favor of Apple. The appeal before the CAFC focused on three mains areas of intellectual property law: trade dress, design patents, and utility patents.

Trade Dress

Trade dress protects characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers.  Trade dress must have secondary meaning as well as be non-functional.  Here, the appeal before the CAFC dealt with both federally registered trade dress, as well as unregistered trade dress as it relates to Apple’s products.

Unregistered Trade Dress

Apple claims certain elements of its iPhone 3G and 3GS to define an unregistered trade dress: 1) a rectangular product with four evenly rounded corners 2) a flat, clear surface covering the front of the product 3) a display screen under the clear surface 4)substantial black borders above and below the display screen and narrower black borders on either side of the screen 5) when the device is on, a row of small dots on the display screen, a matrix of colorful square icons with evenly rounded corners within the display screen, and an unchanging bottom dock of colorful square icons with evenly rounded corners set off from the display’s other icons.

Apple’s main argument was that this trade dress was non-functional whereas Samsung alleged the functionality of the trade dress. The court, in making its determination looks to four factors: 1) whether the design yields a utilitarian advantage 2) whether alternative designs are available 3) whether advertising touts the advantages of the design 4) whether the design results from a simple or expensive method of manufacture

When examining these factors, the court found that Apple failed to show evidence favoring non-functionality stating that Apple pursued both “beauty” and “functionality” in its design of the iPhone. The court then reversed the district court’s finding on this matter in ruling against Apple.

Registered Trade Dress

In contrast to the unregistered trade dress described above, the registered trade dress is also subject to a federally registered trademark.  This comes with a presumption of validity that Samsung must rebuff rather than putting the burden on Apple as with the unregistered trade dress issue. The trade dress here was drawn to “the design details in each of the sixteen icons on the iPhone’s home screen framed by the iPhone’s rounded-rectangular shape with silver edges and a black background.” 

However, Samsung was able to put forth such evidence, which Apple again failed to refute. Thus, the court found that the trade dress was functional and thereby not protectable. The court then reversed the district court with regard to his matter in ruling against Apple.

Design Patents

Design patents generally cover an ornamental appearance of an object. Here, Samsung focused less on the patents themselves, but rather technical arguments concerning jury instructions and monetary damages to be paid to Apple.

Samsung put forth two main arguments concerning design patents before the court: 1) Did the court fail to instruct the jury to disregard the functional aspects of Apple’s design patents? 2) Was the award of “total profits” given to Apple improper?

Jury Instructions

With regard to the alleged functionality of Apple’s design patents, Samsung argued in either the claim construction or jury instruction “functional” aspects should have been filtered out in the infringement analysis. This argument hinged on a previous CAFC case, Richardson v. Stanley Works. However, the justices noted that the case does not support Samsung’s position. Notably that, the language of focus “dictated by their functional purpose” was only a description of facts and in no way established a rule to eliminate entire elements from the claim scope as so alleged by Samsung. Thus, the district court was affirmed on this matter and the CAFC ruled in Apple’s favor.

Total Profits

With regard to the total profits, the provision governing damages (35 U.S.C. §289) states that: “Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250, recoverable in any United States district court having jurisdiction of the parties.”  With that, the justices note that the statute explicitly provides for such damages and affirmed the total profits awarded to Apple.

Utility Patents

Utility patents protect a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Here, Samsung challenged the validity of Apple’s patents as well as monetary damages to be paid to Apple.


Finally, Samsung challenged the validity of one claim in each of two separate patents, as well as the damages awarded to Apple for utility patent infringement. Samsung argued that in one claim the term “substantially centered” was not defined and therefore indefinite, and argued the other claim was previously described by a patent application to Nomura and therefore not patentable.

The court after listening to highly technical arguments ruled with the district court in that Apple’s claims were valid as written.


Apple previously brought forth both damages for lost profits and reasonable royalties. To recover lost profits the patent owner must show causation in fact, that but for the infringement, he would have made additional profits. Market sales of a non-infringing substitute is often enough to defeat a case for lost profits. Samsung attempted to show that it indeed had non-infringing substitutes. However, the one of the phones asserted by Samsung to have not infringed was deemed to be too dissimilar to the iPhone. Further, one of the other asserted phone models was not even sold in the U.S.  Thus, the court upheld the lost profits ruling and ruled against Samsung.

With respect to reasonable royalties, Samsung argued that Apple’s expert offered only a cursory explanation of how she arrived at the royalty rates she calculated. Samsung also argued that a previous expert for Apple had similar flaws in their argument and did not present the analysis for reasonable royalty in light of the proper precedential test. The court chastised Samsung saying that they “complained” about the expert in question and found Samsung’s fault-finding “merit-less.”  Thus, the court upheld the damages and ruled in favor of Apple.

The End? Not likely….



IP in China - video

Posted by Elizabeth Gearhart, Ph.D., Patent Agent at Gearhart Law

Gearhart Law hosted the 1st Annual Global Intellectual Property Law Symposium at the end of March, 2015.  The following link is to the video of the panelist from China, James Zhu, discussing the business climate in China and enforcement of your Intellectual Property rights there:

James Zhu, China

Videos of the other panelists will be posted in future blog posts over the next couple of weeks.

Check back for upcoming global business/IP events!


Google's latest SEO change and mobile websites


Mobile friendly website on a Droid:

re-posted by Elizabeth Gearhart, Ph.D., patent agent at Gearhart

Mobile-Friendly Test click here to test your website

*Google is giving preference to mobile-friendly websites. What does this mean?

*re-posted from the VideoSEOpro blog, authored by Nico Turkienicz
(link at the bottom of this post)

April 21st 2015

Google is launching a change in its algorithm that will ultimately rank sites that are mobile friendly, or “responsive”, higher in search  results than older, “conventional” websites. Could this be a “mobilegeddon”, as some are calling it on social media? I don’t think so.

What is a mobile friendly website anyway?

A website that has an adaptive design that looks different on a smartphone, iPhone, or any other mobile device than it looks on a computer screen. It responds to different kinds of screen; thus it is called “responsive”. On the other hand, the “conventional” websites are the ones that look the same on the computer and on mobile devices, and that may be problematic. We’ve all had the awkward experience of trying to view a non-responsive webpage on our mobile phone: the text looks too small, you can’t view the whole page, you have to “zoom in” into different parts of the page, etc. Most times you will give up trying and just leave the site.

Google’s algorithm change doesn’t come as a surprise. The trend to move from conventional to responsive websites has been going on for a few years already. The main reason is reflected in a 2014 Comscore report: mobile platforms account for nearly 60% of all digital media time. Simply put, if your website is not responsive, you are losing more than 60% of your potential public.

What should you do?

Google’s announcement is just a natural progression of things. No armageddon here, nothing to be afraid of. Yes, if you don’t have a responsive website, you should do something about it. If you don’t know if your website is mobile friendly, you can use this Mobile-Friendly Test to find out.

According to CNBC, roughly 80% of small businesses don’t have a mobile friendly website. This may sound dramatic, but the truth is that turning your conventional website into a responsive one doesn’t have to be a big expense. There are many low cost options out there, like responsive WordPress templates, or even free responsive options like Google even published a guide to mobile-friendly sites to help website owners to make the change.

So it’s not such a big deal?

Yes and no. On the one hand, changing your website into a responsive one may be not that complicated or costly, but on the other hand, IT IS URGENT. As of April 21, 2015, your conventional non-responsive website has a good chance of not showing up in Google searches when people are looking for products or services like yours. So it’s time to get moving!

About the Author: Neco Turkienicz

Neco is an internationally accomplished creative director, TV director and editor, living in New York. Born in Brazil and graduated from the Tel-Aviv University’s Film & Television School, Neco has worked for more than 20 years in broadcast and cable television. He directed and edited several documentary films in Israel and the US and served as Creative Director in two major animation companies in New York, being responsible for hundreds of promos, commercials and trailers for major ad agencies in the US and Europe. Above all, Neco loves to take a good idea from basic concept to visual completion and to tell a great story.

*re-posted from the post at the link below:,861P,2HA68I,I1K5,1


Pitch your business to a panel of investors April 20th!


posted by Elizabeth Gearhart, Ph.D., patent agent at Gearhart Law

Need investment funds?  Ask the Angels and VCs at MSU's meetup on April 20th!  Register here (walk-ins welcome)

Event description:

*A panel of investors will give advice about how to get money to start and/or grow a business: What do they want to see in a pitch? What are some deadly sins to avoid in a pitch?

One or two attendees will be selected in advance to make a pitch to the investors, who will then critique the pitch for the benefit of everyone. If you'd like to be considered to pitch, please email your pitch deck to

John Ason, angel investor
Alex Goldberg, managing director at Canary Ventures
Dan Keoppel, advisor at Far Greater Ventures (previously executive director at Verizon Ventures)
Adam Plotkin, partner at ff Venture Capital
Kathryn Swintek, managing partner of Golden Seeds Fund 2 LP
Moderator: Kathleen Coviello, director, Technology & Life Sciences Division, NJ Economic Development Authority

Event is co-sponsored with Residence LifeMcCarter & English and Mission 50.

6:00-6:45 p.m. Networking with pizza
6:45-7:00 p.m. Welcome and 1-minute pitches from the audience
7:00-8:30 p.m. Panel discussion with audience Q&A

Directions and parking info:

Join the conversation on Twitter and Instagram: #MSUmeetup and @FelicianoCenter

Speaker bios:
John Ason has been an angel investor for the past 15 years and has enjoyed the excitement and fast-paced work of the industry. Prior to investing he worked for over 25 years at AT&T, both doing engineering and international business. John made over 100 trips to the Far East and was working on “bleeding edge” technology, something he found to be useful when he transitioned into angel investing. John grew up in Chicago and graduated from IIT with degrees in Mathematics and Anthropology. John has currently made over 40 professional investments, in an eclectic range of industies, and for many of these investments he has been the lead angel.

Alex Goldberg is the managing director of Canary Ventures and an entrepreneur and angel investor in early-stage B2B software start-ups. He has more than a decade of technical product management, business development and strategy experience from four high-growth, venture capital backed start-ups in Greater Boston, including: Art Technology Group (an innovator in personalized online advertising), Open Market (an innovator in online retailing), Frictionless Commerce (an innovator in strategic sourcing), and Adjoin Solutions (an innovator in cloud technologies). He spent several years working for the one of the top executives at New York-based Computer Associates, where he researched emerging technologies in the Office of the CTO. Alex is an active member of the New York Angels, serves as an advisor to the annual Nantucket Conference, serves on the Young Professionals Steering Committee at Carnegie Hall, and is a member of the TED Global community. Alex has an MBA from Columbia Business School and studied finance in Mumbai, Buenos Aires, London and New York.

Dan Keoppel is an advisor at Far Greater Ventures. He was previously executive director of Verizon Ventures for 14 years. Dan has established corporate venture capital funds with two firms and managed their evolution over several business cycles. He has personally invested over $100 million in capital in 30 portfolio companies. At Verizon, Dan networked with venture capital firms and international entrepreneurial communities to create deal flow and investments consistent with Verizon corporate strategy. He also has managed innovation and corporate development through CVC, M&A, joint ventures, divestitures, and business incubators in wireless and wireline telecommunications, application, M2M/IOT, and cloud computing markets. Dan has led venture-backed, technology start-ups through board representation and business development. On Twitter: @VZVC

Adam Plotkin is a partner at ff Venture Capital. A life-long technology early adopter and enthusiast, Adam spent several years prior to joining ff Venture Capital in business development, advisory and operational roles with a number of startups in New York and Los Angeles. Previously, Adam was the first hire at Lake Baldwin Management, a Princeton opportunistic hedge fund, where he was a generalist investor, managing an array of public and private market investments. Adam began his career at Goldman Sachs in the Leveraged Finance Group, where he devoted a substantial portion of his time advising clients in the telecom and insurance industries, and in the Risk Markets Group, where he was involved in the design, structure and marketing of two of the early catastrophe risk-linked bonds. Adam holds a Master of Business Administration degree from the Harvard Business School. He also holds Bachelor of Arts, Bachelor of Applied Sciences, and Bachelor of Science in Economics degrees, cum laude with distinction from the College of Arts and Sciences, the School of Engineering and Applied Sciences, and the Wharton School, at the University of Pennsylvania, as a Benjamin Franklin Scholar and a Joseph Wharton Scholar. He grew up in New Jersey, where he operated a Commodore-64 based BBS before middle school.

Kathryn Swintek, managing partner of Golden Seeds Fund 2 LP, is also the Co-Head of the Consumer Group for Golden Seeds. She joined Golden Seeds in 2010 and has built stakes in 10 early-stage companies over a 20+ year period. Prior to Golden Seeds, Kathryn was a senior executive in the banking industry, heading Structured Finance, North American Leveraged Finance and launching and heading Global High Yield at BNP Paribas where she completed over 200 transactions in a variety of sectors including the consumer sector.  She also served as the Head of Acquisition Finance at BNY Mellon. Active in women’s leadership circles, Kathryn served as Chair of C200, the leading global businesswomen’s organization and as Membership Chair of The Women’s Forum of New York. She is a Director of Open Road Integrated Media, Turtle & Hughes, and Mela Sciences. She holds a BA from the College of Mt St Vincent and an MBA from New York University. 

Kathleen Coviello is the director of the Technology & Life Sciences Division (TLS) of the New Jersey Economic Development Authority. As such, she along with her team, are responsible for working closely with the early-stage technology and life science companies and investors in the state and delivering the various Edison Innovation Fund products to this community. Prior to joining the EDA, she spent over seventeen years in the banking industry, with the last eight focused exclusively on the NJ Technology Venture Lending Market. Her venture lending experience includes employment at Silicon Valley Bank, Comerica Bank and Progress’s Techbanc. Coviello is active in the NJ entrepreneurial technology community and sits on the advisory and/or valuation boards of Edison Venture Fund, The Garden State Life Sciences Fund, Omni Capital, Osage Ventures, Next Stage Capital and NJTC Venture Fund. On Twitter: @KathleenCoveill

*most of this text was pasted from the MSU meetup page.


Industry week is next week in New Jersey!


Industry Week is April 13-April 17 in New Jersey - a week of interesting and useful presentations and tours for entrepreneurs.

The Technology & Entrepreneurship Talent Network (TETN) is hosting a variety of events for entrepreneurs in NJ for Industry week, free and open to the public. Gearhart Law is proud to be participating and hosting an event on Thursday, April 16th, 6-9pm.  The presentation will focus on Intellectual Property protections available to entrepreneurs and the best strategies for maximizing protection while controlling costs.


To register for this event, follow the link:

To find out more about all of the events and TETN in general, visit the website at:

*About TETN

The Technology & Entrepreneurship Talent Network is a strategic partnership of Information Technology (IT) industry employers, entrepreneurs, educational institutions, government agencies and professional and nonprofit community organizations.

TETN was established by the New Jersey Department of Labor and Workforce Development and hosted by New Jersey Institute of Technology (NJIT) to focus on the specific needs of key industries. The mission of TETN and other NJ LWD Talent Networks is to:

  • Support the efforts of the workforce development system and educational institutions to prepare workers for opportunities in key industry sectors,
  • Serve as the primary workforce contact for the industry sector, and
  • Encourage networking between jobseekers, employers and education and training providers.

*copied and pasted from the TETN website ‘about’ tab