Ch. 28 Intellectual Property

Design Patent

- A design patent protects the appearance, not the function, of an item. - Design patents are granted to anyone who invents a new, original, and ornamental design for an article.

Infringement

- A patent holder has the exclusive right to make, use, or sell the patented invention during the term of the patent. - A 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.

Prior Sale

- An inventor must apply for a patent within one year of selling the product commercially. - The purpose of this rule is to encourage prompt disclosure of inventions. - It prevents someone from inventing a product, selling it for years, and then obtaining a 20-year monopoly with a patent.

Registration has several advantages:

- Even if a mark has been used in only one or two states, registration makes it valid nationally. - Registration notifies the public that a mark is in use, which is helpful because anyone who applies for registration first searches the Public Register to ensure that no one else has rights to the mark. - The holder of a registered trademark generally has the right to use it as an Internet domain name.

In determining if information is a trade secret, courts consider:

- How difficult (and expensive) was the information to obtain? Was it readily available from other sources? - Does the information create an important competitive advantage? - Did the company make a reasonable effort to protect it?

Patent Cooperation Treaty (PCT)

- It is a step forward providing more coordinated patent review across many countries. - Inventors who pay a fee and file a so-called PCT patent application are granted patent protection in the 148 PCT countries for up to 30 months. - During this time, they can decide how many countries they actually want to file in.

Utility patents are available to those who invent (or significantly improve) any of the following:

- Mechanical invention: a hydraulic jack to lift heavy aircraft - Electrical invention: a prewired, portable wall panel for use in large, open-plan offices - Chemical invention: the chemical 2-chloroethylphosphonic acid used as a plant growth regulator - Process: A method for applying a chemical compound to an established plant such as rice in order to inhibit the growth of weeds selectively; the application can be patented separately from the actual chemical - Machine: A device that enables a helicopter pilot to control all flight functions (pitch, roll, and heave) with one hand - Composition of matter: A sludge used as an explosive at construction sites: the patent specifies the water content, the density, and the types of solids contained in the mixture

Patentable subject matter

- Not every innovation is patentable. - A patent is not available solely for an idea, but only for its tangible application.

First sale doctrine

- Permits the owner of a copyrighted work to sell it - The first sale doctrine permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy.

Summary of trade secrets

- Protects: Information that, when used in business, gives its owner an advantage over competitors - Requirements for protections: must be kept confidential - Duration: as long as it is kept confidential

Summary of patents

- Protects: an invention that is tangible application of an idea - Requirements for protections: application approved by the PTO - Duration: 20 years

Summary of copyrights

- Protects: the tangible expression of an idea, but not the idea itself - Requirements: automatic once it is in tangible form - Duration: 70 years after death of the author or, for a corporation, 95 years from publication or 120 years from creation, whichever is shorter

Summary of trademarks

- Protects: words and symbols that a business that a business uses to identify its products or services - Requirements for protections: Must be used on the product in interstate commerce - Duration: 10 years, but can be renewed an unlimited number of times

The following categories are not distinctive and cannot be trademarked:

- Similar to an existing mark - Generic trademarks - Descriptive marks - Names - Scandalous or immoral trademarks

Copyrights

- The holder of a copyright owns the particular expression of an idea, but not the underlying idea or method of operation. - Unlike patents, the ideas underlying copyrighted material need not be novel. - A work is copyrighted automatically once it is in tangible form.

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

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

Copyright term

- The term for a copyright in the United States is the life of the author plus 70 years. - Today, a copyright is valid until 70 years after the death of the work's last living author or, in the case of works owned by a corporation, the copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.

4 factors that show the boundaries between legal use and copyright violation

1. The purpose and character of the use. - When copyrighted material is used for purposes such as criticism, parody, comment, news reporting, scholarship, research, or education, it is more likely to be a fair use. 2. The nature of the copyrighted work. - Facts receive less protection than fiction. 3. The amount and proportion of the work that is used. 4. The effect of the use upon the potential market. - Courts generally do not permit a use that will deprive the copyright owner of income or compete with the original work.

An invention us not patentable if it has already been:

1. patented 2. described in a printed publication 3. in public use 4. on sale 5. otherwise available to the public any place in the world

Trade secret

A formula, device, process, method, or compilation of information that, when used in business, gives the owner an advantage over competitors.

Patent

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

Novelty

An invention must be new to be patentable.

Non-obviousness

An invention must be unexpected to be patentable.

Utility

An invention must be useful for its stated purpose to be patentable.

Trademark

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

Madrid Agreement

Any trademark registered with the international registry is valid in all signatory countries. Ex: The United States is a signatory.

Plant Patent

Anyone who creates a new type of plant can patent it, provided that the inventor is able to reproduce it asexually--through grafting, for instance, rather than by planting its seeds.

Paris Convention

If someone registers a trademark in one country, then he has a grace period of six months during which he can file in any other country using the same original filing date.

Trademark Law Treaty

It simplifies and harmonizes the process of applying for trademarks around the world.

Fair use doctrine

Permits limited use of copyrighted material without permission of the author

International Patent Treaties

The Paris Convention for the Protection of Industrial Property requires each member country to grant to citizens of other member countries the same rights under patent law as its own citizens enjoy.

Priority between two inventors

The first person to file a patent application has priority.

Requirements for a Patent

To receive a patent, an invention must be: 1. Novel 2. Non-obvious 3. Utility 4. Patentable subject matter

Digital Millennium Copyright Act

U.S. statute that updated copyright law for the Internet age - 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. - Internet service providers (ISPs) are not liable for posting copyrighted material so long as they are unaware that the material is illegal and they remove it promptly after receiving notice that it violates copyright law.