Chapter 34 - Intellectual Property

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Patent

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A grant by the government permitting the inventory exclusive use of an invention for a specified period.

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Utility Patent

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A patent available to those who invent (or significantly improve):

Mechanical Invention

Electrical Invention

Chemical Invention

Process

Machine

Composition of Matter

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Tangibility of Patent

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A patent is not available solely for an idea, but only for its tangible application.

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Design Patent

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A patent which protects the appearance, not the function of an item. For example, Apple patenting the look and feel of its iPhones.

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Plant Patent

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Anyone who creates a new type of plant can patent it, provided that the inventor is able to reproduce it asexually - through grafting, not by planting seeds.

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Requirements for a Patent

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Novel, Non-obvious, Useful

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USPTO (PTO)

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United States Patent and Trademark Office

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Priority between two inventors

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Generally, the person who invents and puts the invention into practice has priority over the first filer.

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Prior Sale (Time window for patent application)

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An inventor must apply for a patent within 1 year of selling the product commercially.

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Provisional Patents

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The Provisional Patent Application (PPA) is a simpler, shorter, cheaper application that gives inventors the opportunity to show their ideas to potential investors without incurring the full expense of a patent application.

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Duration of a Patent

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Utility and Plant Patents are valid for 20 years from the date of filing the application. Design patents are valid for 14 years from issuance.

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Infringement of patent

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A patent holder has the exclusive right to use the invention during the term of the patent. A patent holder can prohibit others from using any product that is substantially the same, license the product to others for a fee, and recover damages from anyone who uses the product without permission.

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Paris Convention for the protection of Industrial Property (Paris Convention)

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Requires each member country to grant citizens of other member countries the same rights under patent law as its own citizens enjoy.

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Patent Law Treaty

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Requires that countries use the same standards for the form and content of patent applications (whether submitted on paper or electronically).

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Copyrights

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The holder of a copyright owns the particular tangible expression of an idea, but not the underlying idea or method of operation.

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Infringement of Copyright

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To prove a violation, the plaintiff must present the evidence that the work was original and that either:

- The infringer actually copied the work, or

- The infringer had access to the original and the two works are substantially similar.

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First Sale Doctrine

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This doctrine allows a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy.

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Fair use doctrine

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This doctrine permits limited use of copyrighted material without permission of the author. Purposes covered by this doctrine includes purposes such as criticism, comment, news reporting, scholarship, or research.

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Parody

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Parody is a fair use of copyrighted material as long as the use of the original is not excessive.

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No electric theft act

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Enacted in 1997, this act is intended to deter the downloading of copyrighted material. This act states criminal penalties for the reproduction or distribution of copyrighted material that has a value of over $1000, whether or not there was a profit motive.

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Family Entertainment and Copyright Act

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This law prohibits the use of a camcorder to film a movie inside a theater, it also creates criminal penalties for the distribution of software, music, or film online.

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Digital Millennium Copyright Act (DMCA)

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It is illegal to delete copyright information, such as the name of the author or the title of the article.

It is illegal to circumvent encryption or scrambling devices that protect copyrighted works.

It is illegal to distribute tools and technologies used to circumvent encryption devices.

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The Berne Convention

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Requires member countries to provide automatic copyright protection to any works created in another country, and the copyright doesn't expire until 50 years after the death of the author.

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Trademark

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Any combination of words and symbols that a business uses to identify its products or services and distinguish them from others.

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Types of Marks

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1. Trademark - Affixed to goods in interstate commerce.

2. Service marks - used to identify services, not products.

3. Certification marks - Words or symbols used by a person or organization to attest products and services produced by others to meet certain standards, i.e. Good house keeping seal of approval.

4. Collective Marks - Used to identify memberships in an organization, i.e. The Lions Club, the Girl Scouts of America, etc.

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Valid Trademarks

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Valid trademarks are fanciful marks, aritrary marks, suggestive marks, trade dress.

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Invalid trademarks

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Trademarks which are similar to an existing mark, generic trademarks, descriptive marks, names, deceptive marks, scandalous or immoral trademarks cannot be trademarked.

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Trademark infringemet

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The trademark owner must show that the defendant's trademark likely to deceive customers about who made the goods or provided the services.

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Remedies for trademark infrigement

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The rightful owner is entitled to:

1) An injunction prohibiting further violations

2) Destruction of the infringing material

3) Up to 3 times actual damages

4) Any profits the infringer earned on the product

5) Attorney fees.

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Federal Trademark Dilution Act of 1995

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This statute prevents others from using a trademark in a way that

1) dilutes its value, even if there is no confusion of origin

2) tarnishes it by association with unwholesome goods or services.

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Anticybersquatting Consumer Protection Act

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Allows both trademark owners and famous people to sue anyone who registers their name as a domain name (website) in "bad faith."

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Trade Secrets

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A trade secret is a formula, device, process, method, or compilation of information that, when used in business, gives the owner an advantage over competitions who do not know it.

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Economic Espionage Act of 1996

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Legislation which makes it a criminal offense to steal (or attempt to steal) trade secrets for the benefit of someone other than the owner, including for the benefit of any foreign government.