Intellectual Property

Copyright (cont.)

Fair use doctrine: Permits certain limited use of a copyright by someone other than the copyright holder without the permission of the copyright holder Protected uses Quotation of the copyrighted work Use in a parody or satire Brief quotation in a news report

Trademark Infringement

For a mark holder to prevail on a claim of trademark infringement under the Lanham Act, she has the burden of proving that the infringement would likely cause confusion among reasonable consumers called the likelihood of confusion standard. Many courts apply a balancing test

Trade Secret

Trade secret protections are provided by state statutes and/or state common law. The Uniform Trade Secrets Act (UTSA) defines trade secrets as information or articles that are to be kept secret because of its particular value. Ex: Customer list

Misappropriation

acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means disclosure or use of a trade secret of another without express or implied consent.

Design patents

cover primarily the invention of new ornamental designs on articles of manufacture.

Utility patents

cover the invention of any new and useful process, machine, article of manufacture, or composition of matter or any new and useful improvement.

Plant patents

cover the invention or discovery of asexually or sexually reproducible plants

Exclusive Rights for Unlimited Duration

Most significant advantage of trade secret protection over other forms of intellectual property is that protection for trade secrets does not expire after a fixed period of time. Trade secret owners have recourse only against misappropriation. Discovery of protected information through independent research or reverse engineering is not misappropriation

Patent

a statutorily created monopoly right that allows an inventor the exclusive entitlement to make, use, license, and sell her invention for a limited period of time.

Policing the Mark

A primary threat to a mark's distinctiveness is the use of the mark by competitors and other third parties. Of particular concern to managers should be the use of the mark as a noun or verb in trade and nontrade publications. If a word becomes too generic to the point where it has lost its distinctiveness, the rights are lost through genericide. Aspirin, escalator, thermos, yo-yo

What is a trademark?

A trademark is a word, symbol, or phrase used to identify a particular seller's products and distinguish them from other products. For example, the word Nike and the Nike "swoosh" symbol identify shoes made by Nike and distinguish them from others

Novelty Standard

An invention or process must be unique and original, and a patent applicant must show that no other identical invention or process exists.

IP Intro

Founders of America understood the value of I.P.: Article I § 8 authorizes Congress to "secur[e] for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Copyrights

Fundamentally, in order to gain copyright protection, a work must meet a three-part test: originality some degree of creativity fixed in a durable medium

Acquiring Rights for Trademark Protection

Holders acquire rights to trademark protection either through use in commerce registration of the mark with the U.S. Patent and Trademark Office

Fundamentals of Patent Law: Patentability Standards

In order to be patented, an invention must be novel andnonobvious and be a proper subject matter for protection under the patent law. **ex: Stool with three legs

Intellectual Property

Intellectual property (or "I.P.") is becoming more important because of the significant value of I.P. to many corporations, which in some cases may exceed the value of physical, tangible assets.

Nonobviousness Standard

Nonobviousness standard requires that an invention must be something more than that which would be obvious, in light of publicly available knowledge, to one who is skilled in the relevant field. A patent cannot be granted for minimal improvements that were relatively obvious to those in the field.

Remedies - "The Sport of Kings"

Patent infringers are subject to the following damages: Actual damages Prejudgment interest Attorney fees

Why patents?

Patents are often an important part of these firms' planning because their business model depends on the benefits of obtaining a patent—the full legal protection of their ideas, methods, and inventions

Copyright continued #2

Reproduction by a teacher or student of a small part of the work to illustrate a lesson Incidental reproduction of a work in a newsreel or broadcast of an event being reported Reproduction of a work in a legislative or judicial proceeding

Copyright Protection Periods

Sole author or originator for 70 years from death of author or originator Etc.

Trademarks

Trademark a nonfunctional, distinctive word, name, shape, symbol, phrase, or a combination of words and symbols that helps consumers to distinguish one product from another The name and logo of Coca-Cola comprise one of the most famous trademarks in the world. Consumers have confidence in the product, and the Coca-Cola trademark distinguishes the product from competing colas.

intellectual property

Trademarks, trade names, service marks, trade dress to identify products (trademark), business (trade name), services (service mark) trade dress - total image of a product

Fundamentals of Patent Law: Categories

Utility patents Design patents Plant patents

Criminal Sanctions---Economic Espionage Act

is a federal statute passed in 1996 providing criminal penalties for domestic and foreign theft of trade secrets.

Direct Infringement

occurs when the copyright owner can prove that she has legal ownership of the work in question and that the infringer copied the work without permission. Courts have developed the substantial similarity standard to guide the definition of copy under copyright laws. Thus, a copyright holder need prove only that the infringer copied plots, structures, and/or organizations that made the infringing work substantially similar to the copyrighted work