Chapter 4 - Intellectual Property

U.S. Const., Article 1, Section 8: Congressional Power

"To Promote the Progress of Science and the useful arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries."

Infringement of copyright

1. P must own a valid copyright 2. D must have "copied" it; independent parallel creation is not prohibited 3. Ordinary consumer would see a "substantial similarity" between the works

patent v. copyright

1. Unlike copyright (or trademark) there is no patent right before an application is granted [Note: grant is not conclusive]. 2. More demanding filing requirements: 1) specification 2) necessary drawings; 3) an oath 4) description of claims. 3. Failure to disclose all material information (including known "prior art") is "inequitable conduct" and can make patent unenforceable. Important to keep notebooks/thorough records

4 statutory "factors" of fair use:

1. purpose and character of "infringing" use (commercial, non-profit, educational) 2. Nature of copyrighted work 3. How much of the work was copied? 4. impact of "infringement" on market for the work

How long for patent

20 years from the date the patent application was filed

What is a trademark?

A distinctive sign that identifies goods or services as being produced by a specific person or enterprise. Can be word, phrase, design, symbol, etc. Even a smell.

How do I get a patent?

Application to patent office required, Patentable Subject Matter, Enablement (description makes it replicable), Must be timely filed, Importance of description of scope and function

three types of intellectual property

Copyrights, Patents, Trademark

How to get a copyright

Exists upon creation but registration is often wise since it serves as prima facie evidence of the copyright's existence. Length of a copyright = 70 years after death of creator; or 95 years after publication or 120 years after creation

Defenses of copyright

Fair Use, Invalidity, I didn't copy your expression—or I only built on your idea

At Common Law

For the most part IP was basically unprotected. A man's property is limited to the chattels which embody his invention. Others may imitate these at their pleasure." Suggestion of no room for federal common law under the Constitution

What protection does trademark provide?

For the term of the trademark prevents others from using that mark for a specific good or service: right to file infringement suit Again, protection is generally only national but the Madrid Agreement and protocol allows recognition of rights in all signatory states Dilution applies to "famous" marks Lasts until abandoned

Substantive requirements of a trademark

It must be distinctive so as to distinguish it from other marks Distinctiveness can be either inherent or acquired (secondary meaning) Need to be the first to use mark in connection with the product or service Non-functional

Characteristics of IP

Many people can use it simultaneously, The right is weighted even more than other types of property to the "exclude" part of the bundle, IP law is increasingly federalized and internationalized

Trade secrets

Matters held in confidentiality by corporation. Must not be disclosed or protection is lost. Employees must be bound by confidentiality. Can prevent theft or appropriation by others.

Elements

Novelty, Non-obvious, utility

Three elements of copy right

Originality/Creativity, Work of authorship—slot into one of the categories, Fixation: a sort of "permanence"

What is Patentable:

Process, Machine, Manufacture, Composition of Matter, Plants

Purpose of Trademarks

Reduce consumer confusion so it is clear where the product or service comes from

How do I get a Trademark?

Registration unnecessary; happens when the symbol becomes associated with the product through use But registration with appropriate authority is advisable (better protection and better remedies) It must be distinctive so as to distinguish it from other marks

Originality for copyright

Requisite amount of creativity is low; even a small amount will suffice. Protects original "compilations of facts" but not facts themselves: "facts do not owe their origin to an act of authorship"

Scope of Patent

Right to exclude others from using/making the invention, Generally limited to a particular country so multiple filings may be required, Patent Cooperation Treaty

Basic Theory behind IP

Utilitarian/Bentham: incentivizes people to Create Works/Inventions. Labor/Personhood: intellectual creations are the highest expression of your personality

What is Not Patentable

Varies by country, Products or substances that are not novel, Products or substances that are obvious, Products or substances that are not functional, Ideas or abstract concepts, Many countries will not allow patents on plant or animal varieties, the laws of nature, discoveries of natural substances, commercial methods, method of medical treatment, An isolated human gene, Human Emotion, Scientific Concepts

Fair Use

criticism, news, teaching, scholarship, research, parody—often involves "transformation"

Patent law protects

new inventions, such as cell lines, machines, and medicines.

Copyright law protects

original works of authorship, such as books, computer programs, plays, sculptures, and songs.

Trademark law protects

words, names, and other symbols which are used by merchants to distinguish their goods and services from those offered by others.