business law for entrepreneurs ch 6

major disadvantages of patents

1. Once the patent expires, the invention is in the public domain and can be used/sold by anyone 2. Obtaining a patent is a complex, expensive, and time-consuming process. Requires a patent attorney 3. Even after a patent is granted, it can be challenged by competitors

three principal defenses to an accusation of infringement.

1. The alleged infringer did not copy the copyrighted work in question. 2. The copyright is unenforceable because the work is not original or the copyright has expired 3. Fair use

copyright infringement

Generally occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Infringers can be subject to statutory fines, compensatory damages for lost royalties, as well as incarceration.

Digital millennuim copyright act

(DMCA) Enacted to protect digital works transmitted over the Internet. Makes it illegal to circumvent Digital Rights Management (DRM) restrictions on works. Internet Service Providers (ISPs) have safe harbor for posting infringing works. As long as they promptly respond to take-down notices

what is the purpose of trade secrets

1.Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Person/entity claiming trademark infringement must establish that

1.it holds a valid trademark, and 2.other trademark is likely to cause consumer confusion

Courts use a multi-factor test to determine "likelihood of confusion"

1.the strength of the plaintiff's mark; 2.the similarity of the marks; 3.the similarity of the products the marks represent; 4.The similarity of the parties' retail outlets and customers; 5.The similarity of advertising media; 6.the defendant's intent; and 7.whether there has been actual confusion

Shop right

A nonexclusive and nontransferable license to use an employee's patented invention

Trademark

A word, phrase, symbol, or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. cannot put the trademark on until it is registered.

trademark infringement

Based on the notion that consumers may be confused as to the origin of a mark if it is too similar to another mark.

what can't you patent

Cannot patent an abstract idea, unless there's a corresponding innovative concept that comes out of it that's new and useful and nonobvious. Cant patent laws of nature.

patent inventor receives

Exclusive right to sell/use the invention in the U.S. for approximately 20 years, In exchange for publicly disclosing the invention. Prevent anyone else from using your invention. Can license people to use it. make a profit, collect royalties. monopoly of the property.

two types of trademark laws in the US

Federal Lanham Act State trademark statutes. Registering a mark with the U.S. Patent and Trademark Office gives the public notice of a legal presumption of the business's ownership of the mark and its exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration

legal protection for trade secrets

Uniform trade secrets protection act, state law. Legal protection comes primarily from state trade secret laws. 2. Must see efforts to keep the information secret or confidential.

who owns the patent

If an employee's job duties include the responsibility for inventing or for solving a particular problem that requires invention, any invention created by that employee during the performance of these responsibilities belongs to the employer. In contrast, an employee who is not hired to invent is the owner of any invention discovered during employment, although the employer is given a "shop right"

trade secrets

Information, including a formula, pattern, compilation, program, device, method, technique, or process. the information is not widely or commonly known.

Patent

New, nonobvious, and useful process, machine, article of manufacture, composition of matter (such as a mixture of chemicals), or improvement of any of these elements.

copyrights

Protect "original works of authorship fixed in a tangible medium of expression". Do not protect facts, ideas, systems, or methods of operation, Though they may protect the way these things are expressed.

how long does a copyright protection last

Protection lasts for the life of the author plus 70 years. Up to 120 years for copyrights owned by corporations.

fair use doctrine

Provides that limited use or copying without permission is not infringing if it is for criticism, comment, news reporting, teaching, scholarship, or research

inevitable disclosure doctrine

Recognizes that the nature of the secrets at issue and the nature of the employee's past and future work justify an inference that the employee cannot help but incorporate the former employer's secret information.

cybersquatting

The Anti-Cybersquatting Consumer Protection Act fundamentally prohibits the bad faith, abusive registration and use of the distinctive trademarks of others as Internet domain names, with the intent to profit from the goodwill associated with those trademarks.

in works made for hire who is the owner if the work is created by an independent contractor.

The copyright does not belong to the employer unless there was a work-made-for-hire agreement or an express assignment of the copyright to the employer. However, work-made-for-hire agreement can only apply to certain types of "specially commissioned" works. Therefore, an assignment of copyright is recommended

four categories of trademarks in trademark infringement

The stronger the mark, the greater the scope of protection; the weaker the mark, the less protection it receives 1. Arbitrary (sometimes referred to as fanciful)•Kodak, Exxon, Xerox 2. Suggestive•Microsoft (suggests software for microcomputers) 3. Descriptive Sharp (televisions); Windows (computers). Must develop secondary meaning 4. Generic: Thermos; Escalator. Kleenex? JELL-O? Google?•No protection

works made for hire

Usually, the creator of the original expression in a work is its author and owner of the copyright. in this case the employer or commissioning party is considered to be the author and, hence, the copyright owner

what type of intellectual property does a patent protect

a new, non obvious, and useful invention

what type of intellectual property does a trademark protect

a unique mark that identifies a company or product

what type of intellectual property does a copyright protect

and original work of authorship fixed in a tangible medium of expression

when does a copyright exist

automatically upon creation of the work. However, a copyright cannot be enforced unless or until it has been registered with the U.S. Copyright Office.

inventions agreement

include assignments of IP, covenant not to compete, and non-solicitation clause. Preston signed this and he lost the patent case.

who does the copyright grant rights to

right to control copies of the work•This includes control over reproduction, distribution, public performances, derivative works (i.e., works based on or derived from one or more already existing works), and public displays.

copyright act

sets out four factors to be considered in determining whether or not a particular use is fair. 1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes 2.The nature of the copyrighted work 3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4.The effect of the use upon the potential market for, or value of, the copyrighted work

what is the major advantage of obtaining a patent

the patent holder receives a monopoly on the use of the invention for the life of the patent

what type of intellectual property does a trade secret protect

valuable competitive information, such as a customer price list