Business Law - Intellectual Property - Module 7

How long does copyright last?

life of author plus 70 years

Who Owns the Copyright in a Work?

Immediately becomes the property of the author who created it at the moment it is put into fixed form.

Patent Infringement

Unauthorized use of another's patent. A patent holder may recover damages and other remedies against a patent infringer.

Unlike patents, a trade secret can last forever. That is, it can last forever if the owner of the secret can, well, keep it a secret. If someone uses lawful means to uncover the secret, then the secret is no longer _____ by the secret's owners. Does this include reverse engineering?

protected Yes. Reverse engineering is an absolutely legal means of discovering a trade secret.

Fair Use

The ability to use a small amount of copyrighted work without permission, but only under certain circumstances and in specific situations (schoolwork and education, news reporting, criticizing, parody or research...most of time ok, but not all the time). Can't infringe on potential market of the owner or make a profit from using it.

What are the three different types of patents?

Utility, Design & Plant Patent

Which of the following types of patents is valid only for a period of 14 years? A) utility patent B) process patent C business method patent D) design patent

design patent

Even if a trademark owner does not believe a similar use of its mark would lead to any consumer confusion, it can protect its trademark through a concept called zzz------. Such was the case when an adult novelty store in Kentucky opened as "Victor's Secret" (the owner's name was Victor).

dilution

Will mailing yourself an idea in a sealed envelope give you any rights to that idea?

no

Trademark Infringement

occurs when someone uses someone else's mark, either completely or to a substantial degree, when marketing goods or services, without the permission of the mark's owner.

A _________is a grant by the federal government to the inventor of the invention for the exclusive right to use, sell, and license the invention for a limited amount of time. A) copyright B) patent C) trade secret D) trademark

patent

The major forms of intellectual property are _____ _,_______ &_________. Unlike tangible personal property (machines, inventory) or real property (land, office buildings), intellectual property is formless. It is the product of the human intellect that is embodied in the goods and services a company offers and by which the company is known.

patents, copyrights, and trademarks

A closely guarded formula for a recipe protected by a soft drink manufacturer would be considered an example of a ___________. A) copyright B) patent C)trademark D) trade secret

trade secret

Even though people can obtain a patent and protect their idea with a patent, they would use a nondisclosure agreement to prevent disclosure until they're ready to file the patent. In addition, trade secret law is used to protect business information that might not be patentable. It applies to things that can't be patented. So recipes, for example, can't be patented. We would use ________ to protect recipes, instead of patent law, which would protect things that are useful and utilitarian.

trade secret law

Which of the following intellectual properties is protected by the Lanham Act? A) trademark B) trade secret C) copyright D) patent

trademark

One reason for the legal protection of intellectual property is to promote Innovation

Innovation. As the World Intellectual Property Organization states, by striking the right balance between the interests of innovators and the wider public interest, the intellectual property system aims to foster an environment in which creativity and innovation can flourish.

Digital Millennium Copyright Act

a 1998 US law intended to update copyright law for electronic commerce and electronic content providers. It criminalizes the circumvention of electronic and digital copyright protection systems. EX: can't disable copyright protection on DVD's, if you upload a portion of a copyrighted song, movie, or television show to YouTube, you may find that YouTube has removed your clip at the request of the copyright holder.

A plant patent covers inventions or discoveries of _________________ plants (e.g., plants produced through methods such as grafting).

asexually reproduced

Utility patents may be granted for ________,______,______,______, or for _______to any of those items. The Apple iPhone certainly is the subject of utility patents. This is the most common type of patent issued.

machines, processes, articles of manufacture, compositions of matter, or for improvements

A mark that indicates that a person has met the standards set by an organization and is a member of that organization is known as _______mark. A)collective B)certification C)service D)ownership

collective

_______________________ is a legal right that gives the author of qualifying subject matter if the author meets other requirements established by law, the exclusive right to publish, produce, sell, license, and distribute the work. A) Trade secret B) Trademark C) Copyright D) Patent

copyright

In terms of copyright law, the use of copyrighted material in a satire or parody would be an example of __________________. A) copyright infringement B) application of fair use doctrine C) piracy D) copyright sharing

application of fair use doctrine

A design patent may be granted for ___________ for an article of manufacture (manufactured items).

ornamental design

A patent confers the legal right to exclude others from making, using, or selling the patented product. unless they have permission from the _____

patentee

What is a work considered once copyright has expired? Public domain Fair use Creative Commons Minimized rights .

public domain. Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable

Examples of Trademarks

sounds like NBC's ding, ding, ding, you've got mail for AOL, Symbols like the arches for McDonalds Names...NIKE, Reebok, etc. catchphrases...You're fired by Trump Lyrics...like a rock from Chevy Figure or Mascot....gecko on Geico commercials Color: if two companies aren't in similar industries, there's no problem with using the same color. If you use Home depot's orange in your new hardware store, you will probably be sued.

What is copyright?

the exclusive legal right, to exclude others from using or marketing forms of expression[ ..applies to certain literary or artistic productions. Today, copyright extends to any form of creative expression, including digital forms.

A U.S. utility patent is generally granted for ____ years from the date the patent application is filed; however, periodic fees are required to maintain the enforceability of the patent. A design patent is generally granted protection for ___ years measured from the date the design patent is granted. A plant patent expires __ years following the original patent application.

20, 14, 20

Which of the following could be considered a trade secret? The appearance of a retail store A product name A chemical formula A distinctive website logo

A CHEMICAL FORMULA. The Uniform Trade Secrets Act's definition of trade secret information includes a formula that derives independent economic value and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Genericide

When a trademark becomes so well known that it becomes the generic term for a product, and trademark rights are lost. Ex. Kleenex, q-tip, cellophane all lost their rights.

A trademark is not limited to a name or logo used to sell goods. If a company provides a service (as opposed to selling goods), it too can receive trademark protection. In this case it is called a ________

service mark, example...Facebook

brand

a name, term, sign, symbol, or design, or a combination of these, that identifies the products or services of one seller or group of sellers and differentiates them from those of competitors

The _________ that is copyrighted. Since computer software is a compilation of binary code expressed in 1 and 0, all software is copyrighted. On the other hand, sequential page numbers or listings in a phone directory show no creativity and are therefore not copyrightable.

expression of your creativity

How long does a trademark last?

forever

Few businesses of any size could operate without being able to protect their rights to a particular type of intangible personal property: _______________________

intellectual property

A claim for _________ may be brought when a trade secret has been wrongfully obtained, such as through corporate espionage or bribery.

misappropriation

A work must be original (not copied) and fixed in a durable medium to be copyrighted. Therefore, if you sing an original song in the shower in the morning and your roommate hears it and records it, the copyright to the song belongs to ________

your roommate

Trade secrets are:

a secret process, formula, pattern, program, device, method, technique or compilation used by a company in manufacturing its products.

intellectual property

a work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.

What are the procedures for obtaining a patent?[

>Patentable subject matter must be "new and useful" process, machine, manufacture or composition of matter. Machines or processes are patentable subject matter, but the laws of nature are not. UTILITY -The invention must be useful. Note that this requirement is only for utility patents NOVEL - New, something never done before NON OBVIOUS - use or function can't be something that is simply the next logical step of an already patented invention. NOT SUBJECT TO STATUTORY BAR -The invention must not have been "disclosed" to the public 1 year prior to the application for the patent. For ex, if you've written an article describing the invention before you apply for the patent, the USPTO may deny the application because you've already disclosed the patent and therefore it's public knowledge.

End User License Agreement (EULA)

A legal contract between the author of software and the end user that defines how the software can be used

Trademark Something begins to look like a trademark when a consumer ________ it with a particular origin.

A trademark is any kind of name, logo, motto, slogan, device, sound, color, or look that identifies the origin of a particular good or service. IDENTIFIES

Ginger, Dan, and Bob are in business together in the United States making toys. Bob invents a new type of toy and both Dan and Bob file for a patent within 12 months, but Dan is the first to file the patent. Bob sues Dan for patent infringement. Legally, who holds the patent rights to the toy? Bob, because he invented the toy Ginger, Dan, and Bob, because they have equal patent rights Bob and Dan, because they would have joint patent rights Dan, because he was the first to file the patent

B. Bob ...... Often, two inventors apply for a patent for the same product or process within the same 12-month period. Three factors determine who wins the patent: the date and time that the product or process was conceived; the date and time that the product or process was reduced to practice; and the diligence that was used to pursue patent protection and to perfect the discovery. Generally, the first inventor to conceive the product or process has priority in the application process.

Public Domain

Creative work that is no longer protected by copyright law and available to everybody.

Copyright is a bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale. What does a copyright give the creator the sole legal right to? Publish and sell the original work Represent or market the conventional ideas Retain or transfer the application of the ideas Promote or trade on the words

Publish and sell original work. A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work.

Improper misappropriation occurs when you obtain which protected item by using improper means? Trademark symbols Patent designs Copyrighted works Trade secrets

Trade secrets. Misappropriation is the improper acquisition, disclosure, or use of a trade secret. Under trade secret law, misappropriation, not infringement, is the main reason for a lawsuit.

How can suits for patent infringement arise?[ Suits for patent infringement can arise in three ways: ---The patent holder may seek _______ and an injunction against the infringer in federal court, requesting damages for royalties and lost profits as well. ----Even before being sued, the accused party may _______________________ under the federal Declaratory Judgment Act, seeking a court declaration that the patent is ______. The patent holder may ____________ for royalties claimed to be due, and the ________ may counterclaim that the patent is invalid.[ Also patent holder can sue for indirect liability for contributing to the infringement

damages may take the patent holder to court, invalid may sue a licensee, licensee EX: Apple sued Samsung for patent infringement for copying key features.

Copyright infringement occurs when someone uses a copyrighted work without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display, or perform the protected work, or to make derivative works. Copyright infringement may include unauthorized sales and/or [delegation, fair use, royalties, or distribution} of a protected item.

distribution The unauthorized manufacture, sale, or distribution of an item protected by a copyright, patent, or trademark constitutes an infringement.

Consider what would happen if you tried to trademark your name. If your name happens to be Sam Smith, you would probably have a pretty hard time getting a trademark for your name. If, however, you called your business Sam Smith anyway, and started growing your business so that eventually, over time, consumers began to ________ "Sam Smith" as your business, then your name has acquired secondary meaning and can be trademarked. Thus, Sam Adams is a trademark for a beer, Ben & Jerry's is a trademark for ice cream, and Ford is a trademark for a motor vehicle.

identify

Intellectual property falls into a category of property known as ___________. A) moveable property B) real property C) tangible property D) intangible property

intangible property

In general, the United States (unlike many other countries) grants a patent right to the first person to invent a product or process rather than to the first person to file for a patent on that product or process. As a practical matter, however, someone who invents a product or process but does not file immediately should keep detailed research notes or other evidence that would document the date of invention. According to the Public Use for Patent Eligibility doctrine, an inventor who fails to apply for a patent within ______ of that date would forfeit the rights granted to an inventor who had published details of the invention or offered it for sale

one year

Doctrine of Equivalents

under this, a device or method can infringe on a patent if it is substantially equivalent to the patented device or method

Trade secret is a type of law that protects something that is secret and has ______. Those are the key elements. Imagine that you have business information that you've managed to keep secret. And because it's secret, it has value. In many cases, companies have information that they make everybody sign confidentiality agreements. Companies can sue you if you disclose the trade secret.

value

What types of things are not patentable?

*an idea alone (without a definite description) cannot be patented. (I phone w/description is patentable) *physical phenomena, the laws of nature, abstract ideas, and artistic works cannot be patented. --- Note, however, that artistic works can be copyright protected * subjects that are not useful, or items that are offensive to public morality, are not patentable.

Uniform Trade Secrets Act (UTSA)

A law that protects intellectual property, such as a formula, device, idea, process, pattern, or compilation of information that is not general knowledge to or accessible by other people. Most states have adopted, but there is no federal law protecting trade secrets.

What are copyright licenses?

A license that allows members of the public to view or use a copyrighted work for free or for a fee.

What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something or offers a new technical solution to a problem.

Collective mark (or collective trademark)

A trademark representing membership in a group or organization. Ex: Girl Scouts of America, REALTOR

When you purchase a physical book or CD or DVD, for example, the _________ allows you to view the movie, listen to the music, or read the book in private. The license does not allow you to show the movie in class to a broad audience, or to record the music into your computer and then modify it, or to run photocopies of the book to give away or sell.

COPYRIGHT LICENSE

copyright infringement

Copyright infringement occurs when someone uses a copyrighted work without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display, or perform the protected work, or to make derivative works. For example, if a classmate takes your class notes without your permission and makes photocopies of them, the classmate has infringed on your copyright.

Module 7: Wrap-Up The Constitution commands Congress to provide monopoly protection for intellectual property, but only for purposes of progressing science and useful arts, and only for a limited time. Content producers will always want legal protection to last as long as possible to maximize profits, while the public good benefits when content falls into the public domain. Congress is under intense pressure to resolve this tension. Many different "things" are patentable, including gene sequences, business processes, and any other "useful invention." The U.S. Patent and Trademark Office acts on initial applications and may grant a patent to an applicant. The patent, which allows a limited-time monopoly, is for 20 years. The categories of patentable things include processes, machines, manufactures, compositions of matter, and improvements. Ideas, mental processes, naturally occurring substances, methods of doing business, printed matter, and scientific principles cannot be patented. Patent holders may sue for infringement and royalties from an infringer user.

Copyright protects any creative work fixed in a tangible medium. Copyright protection is automatic without any prior government approval and generally lasts for 70 years past the death of the author. Copyright owners can license others to use their works while retaining full rights of ownership. Digital works are fully protected by copyright and may be encrypted with digital rights management schemes. Copyright infringement, both direct and contributory, is a serious civil violation that can result in heavy monetary penalties. Fair use is a defense to copyright infringement. The Digital Millennium Copyright Act prohibits any attempts to circumvent a copy protection device or scheme. Trademarks are anything that identifies the unique origin or goods or services. Trademarks are granted under federal law by the U.S. Patent and Trademark Office and can last forever. When a trademark is no longer associated with a specific origin, it becomes generic and loses legal protection. Trademark owners can take legal action against infringement and dilution of their marks. Fair use of trademarks includes comparative advertising and parody. Trademark protection extends to the internet, where mark owners can prevent bad faith domain name squatting. Trade secrets last forever if the owner of the secret keeps the secret. However, if someone else discovers the secret through a lawful method, then the owner of the secret has no right to exclude others from using the secret. Unlawfully obtaining a trade secret is called misappropriation, which is an actionable claim. The Uniform Trade Secret Act has been adopted by most (but not all) states, so different jurisdictions have different rules of law concerning trade secrets.

Copyrights are protected by the Copyright Act, patents are protected by the Patent Act, and trademarks are protected by the a. Uniform Trade Secrets act b. Commerce Act c. Lanham Act d. Patriot Act.

Correct! The Lanham Act was enacted by Congress in 1946 based on the power granted to it by the Commerce Clause. It protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.

Licenses in the digital arena can be very restrictive if you purchase digital media. Copyright holders may use schemes such as {_____________________} to limit your ownership rights in digital media. DRM limits the number of copies and devices a digital file can be transferred to and, in some cases, even permits the copyright holder to delete the purchased work.

Digital Rights Management (DRM)

Trademark Infringement Defenses

Fair use - Example: Using the term "overstock" does not infringe on Overstock.com. ---OK to use if you are comparing items. ---Used for parody/comedic purposes in social commentary (free speech) Common Use - Examples: Kleenex, aspirin, cellophane

Some organizations advocate the creation of a common license that authors can refer to if they wish to distribute their work easily. The _____________ for software and _________license for text and media are well-known examples. One right that you do have, however, in spite of any language in the license, is the right of first sale. Essentially this means that as the owner of the physical work, you can do with it as you please, including resell the original work.

General Public License (GPL) and Creative Commons (CC)

Shop Right Doctrine

Gives the employer a nonexclusive, royalty-free license to use the employee's invention if it was created on company time and through the use of company facilities

How long can a trademark be protected under federal law? Indefinitely Ten years Twenty years Fourteen years

Indefinately. Rights in a federally registered trademark can last indefinitely if the owner continues to use the mark and file all necessary maintenance documents with the required fee(s) at the appropriate times.

Which option would be eligible for protection under trademark law? A photo taken by a professional photographer The magenta color of T-Mobile The product name "Leather Shoez" (describing shoes that are not made of leather) The product name "Inkjet Printers" .

Magenta color of T-Mobile. Sounds, shapes, symbols, and even colors can be trademarked. Do not confuse the term trademark with ownership of color though. Trademarking a color simply allows a company to use a particular combination and shade of color in its own industry

How can genetically modified agricultural products be patented?

The plants must meet the requirements of being useful, new, and non obvious. They are useful (resists worms and weeds), non obvious (to someone in the gmo tech field), and new (type of plant and no one else filed for the patent for that particular invention).

A fair use includes copying a work for purposes of commentary, criticism, news reporting, teaching, or research. What is the purpose of fair use? To allow any amount of material to be copied. To allow a short excerpt to be copied that attributes to the author. To allow material used for educational purposes to be copied. To allow anything under 300 words to be copied.

To allow material used for educational purposes to be copied. -- Under the fair-use defense, another author may make limited use of the original author's work without asking permission. The Copyright Act of 1976 took note of the new copier technology, listing "teaching (including multiple copies for classroom use)" as one application of fair use.

In addition to phrases, symbols, and designs, which of the following can also be trademarked? Words Ideas Concepts Proposal

Words. A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.

Copyright infringement also occurs when you assist someone in violating a copyright or create a device that assists in violating a copyright. If you make digital media available for download for others, you are not engaged in illegal downloading but still liable for contributory copyright infringement. Devices that can be used for purposes other than violating copyrights (such as photocopiers, video/DVD burners, and peer-to-peer networks used for sharing research) ______ considered infringing devices

are not

Copyrights protect an original work of authorship that's been fixed in tangible form. So it's a book, it's a poem. It's music, it's artwork. That's copyright. Copyright protects a work of ____. A work of authorship. Once it's been fixed in tangible form. Doesn't protect ideas. It protects the medium of expression, the actual thing you've created. Trademark protects the _________. So if you sell a product or service, you have to have a name for that, and the name for that is your trademark. You don't copyright that. You can't even copyright a name. And you can't trademark something that you would otherwise copyright in most cases. So, these are completely distinct.

art, brand identity

Common defenses of trademark infringement include fair use, free speech, and a. no ill intent b. competitive advertising c. comparative advertising d. was not aware

c. Correct! Use of a third-party mark in truthful comparative advertising is fair, so long as the use is not misleading and does not create confusion among customers.

Key Takeaways Intellectual property includes works or inventions that are the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc. Intellectual property rights are infringed when a work protected by intellectual property laws is used, copied, or otherwise exploited without having the proper permission from a person who owns those rights. Under the ___________, brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.

fair use doctrine

When does a patent enter the public domain? A) when the patent has been challenged in court and found to be an infringement B) when the patent term has expired C) when the government deems that the practical purpose of the invention is universally applicable and cannot be controlled by one individual or group of people D) when the invention is either obvious or not a novel one.

when the patent term period has expired