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172 Cards in this Set
- Front
- Back
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What are the two types of property?
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Real and Personal
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What is real property?
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The land and anything permanently attached to it as far up and down as you can reasonably use.
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What is personal property?
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Anything that is not the land and not permanently attached to it.
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What are the two types of personal property?
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Real and intangible
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What are the ways to protect real property?
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Fences, guards, deeds, alarms,
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What are the ways to protect personal property?
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Safes, guards, alarms, banks, conceal
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What are the two types of personal property?
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Intangible and tangible (intangible is more difficult to protect)
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What does Governmental Protection for intangible property consist of?
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Secures the exclusive rights to authors and inventors for a limited amount of time to their writings and discoveries.
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Monopoly vs. Disclosure
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The government grants the right to exclude others, in exchange for a full disclosure. People are able to see the innovations which usually inspire them to innovate themselves.
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What are the four types of intellectual property protection?
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Patents, copyrights, trademarks, trade secrets
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What are some typical intellectual property remedies?
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Injunctive relief, monetary relief, destruction or impoundment, criminal penalties
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What is injunctive relief?
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The court orders the person to stop selling or producing something
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What is a patent?
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Protection on how something is made (an idea), it excludes others from making, using, selling, offering for sale, or importing your invention into the US. It may not allow its owner to practice the invention
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What are the three types of patents?
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Utility, Plant, and design
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What is a utility patent and what is its duration
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It protects mechanical inventions for 17 or 20 years
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What is a plant patent and what is its duration?
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Protects biological plant inventions, it last 20 years
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What is a design patent and what is its duration?>
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Protects ornamental design, it lasts 14 years
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What types of things are patentable?
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Machines, composition of matter, articles of manufacture, processes, ornamental design of object
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What types of things are not patentable?
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Laws of nature and phenomenon, products of nature, math formulas, methods of conducting business, printed material
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What are the requirements of a patent?
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Novelty, non-obvious, and utility
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What are the stipulations of a patent (statutory bar)?
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There is a statutory bar after one year if the product is used in US or abroad, published in US or abroad, patented in US or abroad, sale or offered for sale
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What do copyrights protect?
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The original work of authorship fixed in a tangible medium of expression (expressions not ideas). These can be expressed in books, movies, music, plays, etc.
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What are some examples of copyright laws?
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Constitution (can have monopoly on that idea expression), Federal Copyright Law of 1976 (Rights), Berne Convention of 1989 (Treaty among nations), Digital Millennium Copyright Act of 1998 (file sharing downloading)
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What subject matter is protected under a copyright?
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Literary words, pictoral, graphic and sculptural works, sound recordings, musical and dramatic works, architectural works after 12/90, compilations (only if original in selection and arrangement), derivative works (based on preexisting materials), computer programs, fabric designs
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What rights are you given under a copyright?
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You can make copies, adapt into derivative forms (ie Harry potter movies, dolls, etc), publically distribute, publically perform, publically display
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What are the 3 levels of formalities with a copyright?
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Common law, notice, and registration
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What is common law for a copyright?
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you automatically have the rights to your work with out notice and registration (you will have more if you perform these)
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What is notice for a copyright?
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Placing the copyright symbol on your work. This protects against "innocent infringement" because it discloses to the public that you own that work.
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What is registration for a copyright?
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Filling out a copyright form and submitting it. This gives you all rights and remedies (in a suit) for infringement on your work
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What are the registration rights for a copyright?
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establishes a public record, allows for filing federal lawsuit (can't get into federal court without it), if registered within 5 years of publication, its prima facia evidence of copyright validity, can record registration with US customs to prevent importation
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Prima Facia
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Something presumed to be true unless proven otherwise
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What are the three types of copy right ownership?
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sole author, joint author, work for hire
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What is a sole author and what are their rights?
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Full ownership and rights go to the person creating
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What is a joint author and what are their rights?
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Rights, ownership and profits are split 50/50 (whether or not work was)
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What is a work for hire and what are their rights?
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A person hired to create something into fixed media (ie writing commercial jingles). The author doesn't have ownership. If an employee creates it their employer is the automatic owner. An independent contractor retains ownership unless it qualifies as work for hire and is subject to contract.
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What is the duration of a copyright?
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The life of the author plus 70 years, corporation 75 years, joint authorship is 70 years after death of the survivor
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What constitutes infringing a copyright?
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Copying: substantial similarity, access to protected works, intent is not required
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What is the Fair Use Doctrine?
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Copyrighted works may be used for criticism and comment, news reporting and educational uses
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Parody on copyrights?
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parodies are fair use. Like mad tv and magazine. parodies are protected
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What is the 4 part test to determine copyright infringement?
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purpose and character of use, nature of copyrighted work, amount and substantiality of portion used, effect of use (has it hurt the market for the authors work)
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What is a trademark?
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Symbols used to identify the source of goods and distinguish them for goods sold by others (gives competitive advantage - often one of the most valuable assets)
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What are examples of symbols?
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words, symbols, smells, pictures, sounds
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What are four ways to regulate trademarks?
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common law, lanham act of 1946, federal trademark dilution act of 1996, state statute
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What is common law for a trademark?
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court decisions
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What is the lanham act of 1946
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Rights and obligations for trademarks. Product marks (symbols identifying products), service marks (symbols identifying services), collective marks (symbols identifying clubs, associations and unions), and certification marks (symbols identifying the meeting of standards)
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What are the requirements of the Lanham Act?
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Affix to product or package, use in interstate commerce, 1988 revision allowed for intent to use, distinctive
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What is the federal trademark dilution act of 1996
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Prevents people from creating companies with part of another's name (ie. "Mc" anything)
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What are inherently distinctive marks?
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Arbitrary (existing words which have nothing to do with the product, ie Apple) or fanciful marks (made up words, xerox, kodak), and suggestive marks (suggest something about the product ie.caterpillar, ping and coppertone), descriptive (describe a characteristic of the good or service ie chapstick)
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What are non-inherently distinctive marks?
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Marks with a secondary meaning, Descriptive marks (holiday inn, all bran, golf magazine), and geographic (unless wholly unrelated to prodcut)
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What about non-distinctive marks?
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They can be issued trademarks. This includes common or generic names, or even loss of distinctiveness (cellophane, escalator, aspirin, thermos...not xerox..they advertised asking people not to call copying "xeroxing" so they wouldn't lose their trademark)
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What are the registration rights for trademarks?
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right to use mark nationwide, nationwide notice of ownership, right to bring lawsuit in federal court, potential recovery of 3x damages, attorneys fess and other remedies, "uncontestibility" after 5 years of registration
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Trademark duration
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Perpetual, must renew every 10 years
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Trademark infringement
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Passing off/palming off, and noncompeting goods if consumer believes it comes from the same source
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What is a trade secret?
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Proprietary information, which is not commonly known outside the business, its a secret!
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What is the law surrounding trade secrets?
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Its not public information, its not lost if revealed in confidence, under contract or under implied obligation, it is a competitive advantage
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What are some examples of trade secrets?
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formula, pattern, device, compilation of information, list of customers, process of manufacturing, unique combination, or a combination of otherwise known components
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What are evidence of a trade secret?
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Keeping it secret, not known to public, mark it secret, lock it up, and limit access
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What is are protections for a trade secret?
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Disclosure, use, discovery by improper means (wiretapping, theft, aerial reconnaissance
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What are not protections for trade secrets?
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Discovery by fair and honest means: independent invention, accidental disclosure, reverse engineering
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Why obtain patents?
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Exclude others from practicing your invention, prevent others from exploiting your research and development, Protect costs of R&D, force competitors to design around patent, license rights to practive invention (generate royalty income, bargaining chip in licensing - crosslincense), build value of company, create perception of innovation
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What are reasons NOT to obtain a patent?
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invention is not patentable subject matter, narrow coverage available would provide little commercial value, more beneficial to maintain as a trade secret (technology may become obsolete, duration of trade secret is potentially unlimited), don't compete with customers
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How is a patent obtained?
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prepare and file a patent application with the United States Patent and Trademark Office (USPTO), responding to office actions and pay issue fee and patent issues
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What are the time and cost involved with obtaining a patent?
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Varies, 3-5 years and $10-20,000, foreign patents are an expensive process
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What are the two aspect to an adequate description of a patent?
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written description: is it adequately described as claimed?, and enablement: is it described in a manner in which another can carry it out as claimed?
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What does a design claim for a patent consist of?
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Its standardized "the ornamental design for a ___ as show and described"
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What does a utility claim for a patent consist of?
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The metes and bounds, may vary in type and scope, should include back-up positions
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Independent and Dependent patent claims
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Independent are single claims, dependent claims, note another claim then build upon it
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What are patent do's?
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Keep good invention notebooks (record ideas and actual work, sign and date, witness - noninventor who understands technology), periodically audit your IP, *Make sure all ownership rights and confidentiality agreements are settled in writing prior to development or disclosure, thinking strategically and ahead, consider foreign protection
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What are patent don'ts?
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disclose, publicly use, sell, or offer for sale an invention before you've considered the IP issues, withhold prior art from the patent office, be careless in determining inventorship, ignore potential infringement of other's patents, make careless allegations of infringment, underestimate the cost of patent litigation
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Trade secret vs. patent
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Subject matter and scope: is it even patentable subject matter?, can it be reverse engineered easily or independently invented? TS on enforceable if misappropriated by improper means - independent invention and reverse engineering are permitted. Duration: TS is unlimted, patent is 20 years from filing
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What are trademark functions?
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a word, phrase, symbol, color or design that identifies and distinguishes the source of the goods or services of one party from those of others; guarantees the quality of the goods or services bearing the trademark; facilitates advertising
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Is the mark available?
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a proposed mark may infringe the pre-existing rights of another, advisable to conduct clearance search for any proposed mark, consider cost of changing the mark later
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Is the mark protectable?
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is there a likelihood of confusion with an existing mark? Is it distinctive enough or merely descriptive?
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Considerations for likelihood of confusion
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similarity of sound, appearance, and or meaning; relatedness of the goods; sophistication of the consumer; strength of the mark - distinctiveness
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Types of notice for trademarks
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TM (trademark), SM (servicemark), *asterix next to mark, R (federally registered trademarks only)
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What are trademark pitfalls?
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Stop using the mark for 3 consecutive years, license mark to someone and don't exercise control over quality, fail to adequately police the mark, mark becomes generic or genericized (xerox, bandaid) Generic is the commonly used work for something (tissue, cookie, and cannot be trademarked), genericized occurs when your brand name gets used as a noun or verb. Trademarks are adjectives and shouldn't be used as nouns or verbs
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Things that are not copyrightable
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Unfixed expressions (unrecorded performance), titles, names, slogans, ideas, methods, works having no original authorship
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Daughter of God v. Da Vinci Code
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Lewis Perdue claimed Browns (Davinci) book infringed the copyright of her book Daughter of God, the court performed a detailed side by side comparison, and found no substantial similarity, while some similarity of plots, themes, characters none of these amounted to copyright infringment
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Harry Potter v. Lexicon
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Court found a clear infringement in a side by side comparison. Lexicon contained verbatim copies of creative songs and poems Rowling wrote for the harry potter works, and determined that Lexicon was a derivative work and Rowling has claim over all derivatives. The court permanently blocked publication as it would cause irreparable harm to Rowling as a writer
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What is intellectual property?
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Intangible creations: inventions, innovations, improvements, it gives a bundle of rights (title/control, possession, use and enjoyment, exclusion and disposition)
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What are the top IP issues?
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Protection and enforcement of rights, licenses and assignments, employee agreements, comfort investor and partners
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License
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Permission by competent authority to do an act which wold be not allowable but for such permission
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Licensor
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The person who grants or gives a license
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Licensee
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The person who receives a license
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License (IP)
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Any transfer of IP rights short of a full assignment
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A license agreement is a contract, what should it contain?
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language that is direct and unambiguous, consistent terminology, clearly define key terms (parties, obligations rights and restrictions, payment conditions, royalties, comissions, fees) termination rights, Work with an attorney whenever possible!
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IP Licensing Basics
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Written authority from owner of Ip rights to another person empowering the latter to make or use the protected IP for any or all of the following: a limited period, a limited purpose, a limited territory)
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Why NOT grant a license?
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Financial reasons (cost of warranties and guarantees, cost of administration, failure to grasp potential/value), Business reasons (stuck with lousy licensee, creates a competitor, sharing of proprietary information, disputes)
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Reasons to license to acheive financial goals
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income from royalties, expand sales of licensed products or processes, generate increased sales of related products and materials, as part of sale of a business, share risk and burden of expansion (clinical tests), settle IP dispute (protect IP rights)
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Reasons to license to acheive bsuiness goals
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expand market to new field of use, expand geographic market/brand, stimulate market by creating competition, impose royalty burden on a competitor, create "industry standards", establish business or technical reputation, establish initial business relationship, contribution to joint venture or alliance
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Reasons to license to achieve technological goals
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market test product/process, develop markets for new technology, obtained needed or improved technology (cross license for needed technology, grant back for improvements), expand non-competing use of invention (field of use licenses, exploit incidental developments)
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Trademark licensing
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permission to use TM with specific requirements.
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Examples of trademark licensing
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Jeep strollers, Hummer footwear
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What is a naked license?
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TM license with insufficient provisions to maintain quality of goods/services offered by licensee (bad idea for licensor, can destroy value of TM, result in loss of rights by licensor)
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Copyright licensing
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Permission to use copyrighted work for specific purposes
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Examples of copyright licensing
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A tapestry of popular work of art, software program for a computerized production machine, right to republish an article
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Licensing Patents
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Permission to perform acts or reproduce goods that would infringe on patents without such permission
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Examples of licensing patents
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Method for making fabric or garment, design for a shirt
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Exclusive license
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Agreement not to grant further licenses, agreement not to practive under patent (reserve/sole), implied obligation to exploit by license (require best efforts from license). May limit in time, territory, field, etc. Licensee wants right to sue 3rd parties for infringements, mix/max annual royalty payments, include specific expectations (define success)
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Nonexclusive license
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A promise not to sue for what would otherwise be infringment. Licensee gets no protection from unlicensed competition, Licensor may grant other licenses, licensor can assign IP to a third party (license "runs with" the patent)
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Field of use licenses
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Divide licensed technology among fields (motor: car, plane, boat; speaker: broadcast, theater, home; fabric application: medical, athletic, fashion. Must clearly define the field, May be exclusive just to that field, and nonexclusive to other applications
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Sublicenses
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Right to grant must be specifically granted. May not be less restrictive than main license, license may dictate terms of sublicenses, address effect of termination/expiration of license, license royalties may be due to licensor (or shared)
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Software licenses
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Software covered by patent and copyright, must address both aspects. Patent laws do not fully address software inventions (what is it making, what is it using? what is is copying, what is selling?, what is sublicensing?)
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Improvements in licenses
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Addition/modification to previous invention/discovery, intended or claimed to increase its utility or value. Each party wants rights to improvements made by the other, Define scope of rights to improvements, require notice of improvements
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License consideration
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Lump sum payments (paid up license, time payments, license fee, annual/quarterly/monthly payments) Be creative: can vary from standard forms
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Factors in determining royalty rates
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established market/industry rates royalties, rates paid by licensee for comparables, term (duration of patent life), profitability, commerical success and current popularity of invention, benefits to users of inventions, extend of use by infringer/licensee, portion of profits credited to invention, bargaining power/leverage
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Liability issues in licensing
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Protection for licensor: damage arising from use of license, damage arising from use or sale of licensed products or processes, require licensee to defend and indemnify licensor, licensee and/or licensor must maintain proper insurance
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Representation and warranties for licensing
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Implied in all licenses: licensor has power to grant license, licensor has not tkaen and will not take inconsistent actions; Implied in exclusive licenses: licensor has title to patent, licensor will grant no further license, licensor will not practice under patent; licensor can specifically disclaim certain implications (utility, fitness, merchantability), licensor can request reps for licensee's competency, abilities, and efforts
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Termination of a license
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Termination for cause: breach, at will (without breach), failure to pay minimum royalties, failure to exploit license (not using to best efforts). Termination at will: no reason needed, licensor may just pull the plug
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International issues in licensing
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Choice of law: whose law will govern?, Choice of venue, Dispute resolution, Beware: US import/export laws and regs, Instability in foreign currency, govt approvals, payment logistics
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Joint Research and Development Agreements
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Partnership in which two or more entities bring special skills and contributions to commercialize a new technology
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Key characteristics of joint research and development agreements
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unproven technology, high risk and cost, significant reward
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Key issues in joint research and development agreements
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funding, joint inventions, commercialization, termination, opt-out
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Americans with Disabilities Act (ADA)
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Prohibits discrimination against people with disabilities
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Disability definition
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ADA: impairment that limits major life activities
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ADA covered entities: article 1
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Businesses with 15 or more employees
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ADA covered entities: article 2
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goverments
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ADA covered entities: article 3
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businesses offering public services and utilities
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ADA article 1 covered activities
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application procedures, hiring/firing, advancement, compensation, training
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ADA article 2 covered activities
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public education and employment, recreation, public health care and social services, public courts, public voting and town meetings
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ADA Prima Facia Case
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Disability, qualified for the job, discriminated against by employer because of the disability
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ADA "Reasonable Accomodations"
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Accessible and usable facilities, job restructuring, modified work schedules, reassignment, acquisition/modification of equipment, provision of readers or interpreters
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ADA enforcement Title 1
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Equal employment opportunity comission, complaints filed within 180 days, "right to sue" letter
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ADA enforcement Title 2 and 3
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Department of justice civil rights division, complaints filed within 180 days, no need for right for sue
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Workers compensation act (WCA) purpose
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to compensate employees for unjuries which arose during the course of employment
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Accident
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Event preceding or causing injury
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Occupational disease
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disease due to causes and conditions of an occupation or employment and the exposure is greater than outside employment
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WCA benefits
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medical benefits, disability compensation, death benefits, weekly wages (66.6% of average weekly wages), continuation of other benefits
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Family and Medical Leave Act (FMLA) purpose
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balance workplace demands with family needs, promote the security of families and preserve family integrity
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FMLA covered employer
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An employer that has had at least 50 employees, for each working day, for at least 20 calendar work weeks, in the current or preceding year
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FMLA eligible employee
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Work for a covered employer, have worked for the employer at least 12 months, have worked at least 1,250 hours over the last 12 months, work at a location where at least 50 employees are employed by the employer within 75 miles
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FMLA leave categories
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employee or spouse gives birth, employee adopts child or foster child is placed with employee, employee's spouse, child or parent has a serious health condition, employee is unable to perform job due to a serious health condition
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FMLA serious health condition
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an illness, injury, impairment or physical or mental conditon that involves either: impatient care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider
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Wage and Hour coverage
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Minimum wage, overtime for over 40 hours in 1 workweek, youth employment if under age of 18, wage payment provisions
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Occupational Safety and Heath (OSHA) purpose
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To ensure everyone safe and healthful working conditions (research causes of occupational injuries and illnesses, and develop and enforce standards to remove hazards)
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OSHA administration
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federal and state government
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Employment: at will
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Employee's reciprocal right, for cause, no cause, any reason EXCEPT: not for discrimination, not for reasons against public policy (not at will if employment is for a set duration)
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Wrongful termination
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Coman V Thomas: recognizes "public policy" exception
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Torts against employers
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negligent hiring, defamation
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Emancipation Proclamation
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Freed slaves in the south (war efforts) Abe Lincoln - abolished slavery
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13th Amendment
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Abolished slavery: applies to everyone: government and individuals
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14th Amendment
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Due process and equal protection for everyone, and applies the 1st 10 amendments (bill of rights) to states as well as the goverment
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Equal protection
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People who are in similar situations will be treated equally
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Due Process
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Justice and fairplay (notice, opportunity to be heard, criminal protections, search warrants, etc)
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15th Amendment
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Gave black men the right to vote
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Civil rights act of 1866
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Implements the 3 new amendments and creates criminal penalties for violation of amendments
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Jim Crow Laws
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Separate but equal, segregation
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Plessy V. Ferguson
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Visual white man with black ancestors not allowed to sit at front of bus. It was determined that this didn't violate the 13th and 14th amendment (based on equal protection rights)
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Civil Rights act of 1964
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Title 1 voting rights: everyone entitled to vote, Title 2: public accomodations, Title 3: Desegregation of public facilities, Title 4: desegregation of public schools, Title 5: created the civil rights commission (investigate and rule on cases of discrimination), Title 6: nondiscrimination in federally assisted programs (private college with federal funds can't discriminate), Title 7: equal employment opportunity
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NAACP
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National Association for the Advancement of Colored People (initial strategy was gradualism).
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Garland Fund
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donated money to NAACP changed strategy to more affirmative methods
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Gains v. Canada
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Education: allowed slight change in separate but equal
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NAACP Legal defense fund
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Helped with cases fundraising, legal defense etc.
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Shelly V. Kramer
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Private segregation constitutional but not government enforceable
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Brown v. Board of education
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Ended segregation in schools, based on equal protection rights
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Affirmative Action
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Way to right past wrong and achieve diversity by giving minorities advantages to assist them with school, jobs, promotions, etc
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U. Michigan Affirmative Action case
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GRATZ undergrad: racial points system is unconstitutional. GRUTTER law school: achieving "critical mass" upheld
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What was said at the Seneca Falls Convention of 1848
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All men and women are created equal
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19th Amendment
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Gave women the right to vote
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Civil War and women
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women went to work while men went to was (short lived)
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194 Civil Rights Act
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Prohibited gender-based discrimination in the workplace
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Bradwell v. Illinois
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Women attorney was not allowed to practice even though she had made her way through school (there was no standard yet)
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Frontier V. Richardson
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Women were given different benefits in armed services (gender was determined to be a suspect class in the 14th amendment)
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Craig v. Boren
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3.2 beer sales different by gender. This lowered standard for review. Sex was no longer a suspect class (because women are biologically different than men)
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Griswold v. Conneticut
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contraceptive case. criminal for a doctor to give advice on birth control methods (ruling changed this law)
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Roe. v. wade
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Women's right to an abortion (right of privacy)
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Title VII of Civil Rights Act
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Included Sexual Harassment
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Quid Pro Quo
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Sex for promotion or "do something for me and I'll do something for you"
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Hostile working environment (sex. har.)
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Is constant and interferes with your ability to do work
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Sexual Harassment remedies
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make victim whole, back wages, lost wages, no punitive damages for emotional stress (use state law for this)
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College sports Title IX
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Equal teams (if you have a team for men you have to have a team for women)
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Women and equal pay
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Doesn't exist
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