Chapter 41- Intellectual Property

Rights of owners who prove infringement

(1) an injunction prohibiting further violations, (2) destruction of the infringing material, (3) up to three times actual damages, (4) any profits the infringer earned on the product, and (5) attorney's fees

Design Patents

- protects the appearance, not the function, of an item. - granted to anyone who invents a new, original, and ornamental design for an article. - They last 14 years from the date of issuance.

Five basic categories of distinctive marks

-Fanciful marks -Arbitrary marks -Suggestive marks -Secondary meaning -Trade dress

Criteria for determining trade secrets

-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?

Categories that cannot be trademarked

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

Four factors that determine Fair Use

-The purpose and character of the use -The nature of the copyrighted work -The amount and proportion of the work that is used -The effect upon the use upon the potential market

Utility Patents

-about 94 percent of all patents -Utility patents are available to those who invent (or significantly improve) any of the following: Mechanical invention, Electrical invention, Chemical invention, Process, Machine, or Composition of Matter

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

Patent infringement

Allows holder to 1) prohibit others from using any product that is substantially the same, 2) license the product to others for a fee, and 3) 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 anywhere in the world.

Trademark

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

When is a work copyrighted?

Automatically once it is in tangible form (in writing)

Approval process

Can take anywhere from 3 to 6 years from date of filing

three types of patents

Design patents, plant patents, and utility patents

Defenses to Copyright Infringement

First Sale Doctrine Fair Use Doctrine

Trademark ownership and registration

First person to use a mark in trade owns it. User can use the TM symbol. User can register mark on the Lanham Act Principal Register and use the ® symbol once it is registered

Plant Patents

Granted to an inventor who creates a new type of plant and can reproduce it asexually (i.e. grafting), rather than by planting its seeds

Under what conditions are life forms and business practices patentable?

Living Organisms: if they are different from anything found in nature, and a product of human ingenuity Business Method Patents: involve a particular way of doing business that often includes data processing or mathematical calculations.

Requirements for a patent

Must be: -Novel. cannot already be (1) patented, (2) described in a printed publication, (3) in public use, (4) on sale, or (5) otherwise available to the public anyplace in the world. -Nonobvious. An invention is not patentable if it is obvious to a person with ordinary skill in that particular area. -Useful. It need not necessarily be commercially valuable, but generally, it must do something. -Patentable Subject Matter. A patent is not available solely for an idea, but only for its tangible application.

Copyright term

Owned by an author: valid until 70 years after the death of the work's only or last living author Owned by a corporation: lasts 95 years from publication or 120 years from creation, whichever is shorter

International Trademark Treaties

Paris Convention-grants a grace period of six months, during which the owner can file in any other country using the same original filing date. Madrid Agreement- any trademark registered with the international registry is valid in all signatory countries (includes U.S.) Trademark Law Treaty- simplifies and harmonizes the process of applying for trade- marks around the world

Fair Use Doctrine

Permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reporting, scholarship, or research

Burden of proof for Copyright violations

Plaintiff must present 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.

Four types of marks

Trademarks- affixed to goods in interstate commerce Service marks- used to identify services, not products Certification marks- words or symbols used by a person or organization that products/services produced by others meet certain standards Collective marks- used to identify members of an organization

Duration of a Patent

Utility Patents: valid for 20 years from the date of filing the application Design Patents: 14 years from date of issuance

holder of a copyright

owns the particular tangible expression of an idea, but not the underlying idea or method of operation

First Sale Doctrine

permits a person who owns a lawfully made copy of a copyrighted work to sell or otherwise dispose of the copy, but NOT to make a copy and sell it.

Federal Trademark Dilution Act of 1995 (FTDA)

prevents others from using a trademark in a way that 1. dilutes its value, even though consumers are not confused about the origin of the product; or 2. tarnishes it by association with unwholesome goods or services.

The Paris Convention for the Protection of Industrial Property (Paris Convention)

requires each member country to accept and recognize all patent and trademark applications filed with it by anyone who lives in any member country.

Berne Convention

requires member countries to provide automatic copyright protection to any works created in another member country

Priority between Two Inventors

the first person to file a patent application has priority

Types of trade secrets that cannot be patented

○ recipes, ○ customer lists, ○ business plans, ○ manufacturing processes, and ○ marketing strategies.