Intellectual Property

What sort of subject matter receives protection?

Section 102(a) of the Copyright Act provides eight categories of works: 1. literary works 2, musical works 3. dramatic works 4. pantomimes & choreographic works 5. pictorial, graphic, & sculptural works 6. motional pictures & other audiovisual works 7. sound recordings 8. architectural works

What rights does an author hold in a copyright?

(1)Right to reproduce the works; (2)Right to prepare derivative works; (3)Right to distribute copies of the work to the public; (4)Right to perform the work publicly; (5)Right to display the work publicly. What elements comprise the right of reproduction? (1)Copying in Fact A defendant has based his creation on a copyrighted work. In the absence of direct evidence, circumstantial evidence of (1) access to the work; and (2) similarity between the two works is sufficient to conclude that copying in fact has occurred. If a defendant created a similar work without copying the copyrighted work, this independent creation is a defense to infringement. (2) Improper Appropriation A defendant has copied the portion of the copyrighted work that is protected expression. In other words, there is a substantial similarity between the two works. This element turns on the line between protected expression and unprotected idea.

What elements must be satisfied for the information to receive trade-secret protection?

(1)the information must have independent economic value, which as a result of not being generally known or readily ascertainable, gives its holder a competitive advantage; and (2)reasonable, affirmative efforts are made to preserve the secrecy of the information.

Data privacy

-european union has a lot more data privacy laws than the US

Remedies patent

-injunctive relief- Section 283 of the Patent Act allows courts to grant an injunction to prevent patent infringement. The injunction should be granted "in accordance with the principles of equity." -monetary relief- Section 284 states: "Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court. When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed." What is "adequate to compensate"? (1)Lost profits (reasonably foreseeable); or (2)Reasonable royalty (a) percentage of projected profits of infringer; or (b) hypothetical negotiation between willing licensor and licensee Treble damages in egregious cases, i.e., willful misconduct.

Direct Infringement

-strict liability - Even if a person is not aware of a patent or mistakenly believes that he has permission to exercise one of the rights, that person is still liable if he commits the act of infringement. Lack of knowledge is no defense to an allegation of direct infringement. -literal infringement- Literal infringement occurs when every limitation, exactly as described in a claim, is found in an accused device or activity. -doctrine of equivalents- Courts may find infringement if the accused device or activity is thought to be equivalent to the patented claim.

Patents

1. A patent right is defined by the patents claims •In order to infringe a patent, the alleged infringer must infringe every element of the claim literally or its equivalents -Claims can be directed to products, methods (a method of delivery a drug), or processes or for new uses of old processes 2. copyright law requires only independent creation, a modicum of creativity, and fixation in a tangible medium of expression •But patent law has much more rigorous screening doctrines •Novelty- a patent will not be granted if the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public •Nonobviousness- an invention must not be obvious to a person having ordinary skill in the art to which the claimed invention pertains -This means that only significant improvements on the prior art are patentable, and not minor advances -If you can combine two or more articles or publications to render obvious your invention to PHOSITA (one of ordinary skill in the art), then your invention is invalid •Reduction to practice and enablement- it is not enough to have the idea for an invention (conceive of it it) or even to write it down -An inventor must als reduce the invention to practice by establishing that it works for its intended purpose -What is more, in her patent application0 which will be published if and when she is issued a patent (or sooner, usually after 18 months after the application)- she must enable the invention by providing a written descriotion of the invention, and of the manner and process of making and using it, in such full, clear, concise and exact terms as to enable any person skilled in the art to whcih it pertains, or with which it is most nearly connected, to make and use the same

The Idea-Expression Dichotomy & the Abstractions Test

1.An abstraction of an expression yields an idea. 2. That abstraction can itself be abstracted to yield a further abstract idea. 3.If the abstraction becomes too abstract, the copyright does not cover it. -idea- uncopyrightable -expression- copyrightable

Leahy-Smith America Invents Act

3. the leahy-smith america invents act switched to a first to file basis •Now (subject to some exceptions) the patent will be issued to the inventor whose application was filed first, regardless of who was first to conceive of the invention or reduce it to practice 4. The test for patent infringement is whether every limitation is present in the defendants product of process •The hard part however is that a court will need to interpret the words of a claim to determine what kinds of things it does and does not describe -The claims of a patent, it is sometimes said, establish the metes and bounds of the owenrs rights in the same way that a description of real property does 5. One of the most important rights is to exclude others from practicing the invention if it infringes •Ebay v mercExchange- the supreme court said that patent law should not be treated differently than other areas of law and that the normal process of granting injunction relief (assessing whether there is likelihood of success on the merits, balancing the equities, etc) would be the test to apply to determine whether a permanent injunction is granted -The ebay case ensured that courts would consider the equities in awarding injunctive relief and would not simply grant injunctions automatically 6. There are a few notable differences in patent law damages •For one thing, there are no statutory damages unlike in copyright law -Instrad, courts are authorized to award the plaintiff up to treble damages in cases of willful infringement -For another, instead of copyrights restitutionary damages measure, patent law specifies that the patentee is entitled to damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use of made of the invention by the infringer -Lost profits can also be awarded -Attorneys fees can be awarded in exceptional cases

defense patent

7. While copyright has an independent creation defnese, patent does not •Even if you have never heard of the plaintiff or her patent, if you make, use or sell the invention it describes, you are an infringer 8. Courts have taken an expansive view of the statutory subject matter requirement so that today eligible subject matter includes genetic materials such as DNA sequences, proteins, and business methods •However, the laws of nature and abstract ideas such as E=mc2 are not patentable PHOSITA- person having ordinary skill in the art -US is "first to file" system- whomever files for patent first gets patent

What is a PHOSITA?

A PHOSITA is a Person Having Ordinary Skill In the Art. That is, a PHOSITA represents a person who has the usual skill and knowledge in the relevant field of the invention. For instance, a certified car mechanic might be considered a PHOSITA for an invention dealing with increasing engine performance of an automobile.

copyright 3

A copyright owner holds a right to display a work publicly.* *This right applies to literary, musical, dramatic, choreographic, pictorial, graphic, sculptural works, and pantomimes. It applies to individual images of an audiovisual work. A copyright owner holds a right to perform a work publicly.* *This right applies to literary, musical, dramatic, choreographic, audiovisual works, and pantomimes. *This right applies to sound recordings only if the recording occurs through digital audio transmission (e.g., music streamed over the internet).

When is a patent infringed?

A patent is infringed when, during the term of the patent, someone exercises one of the rights of the patentee without permission. The rights of a patentee are to exclude anyone from making, using, offering to sell, selling, and importing the patented invention within (or into) the United States. These rights to exclude are with respect to each individual claim in a patent. Section 271(a) of the Patent Act states: "[W]hoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent." Direct Infringement- The defendant (or someone acting on the defendant's behalf) commits the act of infringement. Indirect Infringement- The defendant acts to induce or contribute toward someone else's direct infringement.

Novelty

An invention lacks novelty if it is in the prior art. The prior art anticipates the invention if a reference or event contains all of the limitations in the claim by the priority date. prior art anticipate reference priority date AIA- first to file pre-AIA- first to invent Example In 2000, Richard publishes a book that describes a process for producing a rare mineral. In 2003, Hillary invents the same process (independent of reading Richard's book). In 2004, Hillary files for a patent on the process. is Hilarys invention novel? No. Richard's book is a reference in the prior art that anticipates Hillary's claim before the priority date (in this example, Hillary's invention date) Hillary's claim would lack novelty.

Non-Obviousness

An invention must be significantly different from the prior art (from the perspective of a PHOSITA). It must not be obvious to a PHOSITA. The issue of obviousness most often arises where an inventor combines elements from the prior art to create her new invention, i.e., combine SARs vaccine to make covid-19 vaccine Now that we have covid-19 vaccine would it be obvious to use mRNA for HIV vaccine or for other diseases? Novelty is different from obviousness because for obviousness one thing precedes the invention while for obviousness it is a combination of things

Defenses copyright

Challenges to prima facie case -Expression lacks originality. -Expression not fixed. -Subject matter is an idea. -Subject matter is functional object. -Action was not infringing. -Plaintiff is not the copyright owner. Affirmative Defenses -The defendant's work is an independent creation. -defendant has a license -The statute of limitations has passed. -the use is fair

How can a trade secret owner ensure that its employees keep information secret?

Confidentiality Agreement A confidentiality agreement creates a duty for employees or third parties to keep specific information confidential. non-competition agreement A non-competition agreement bars an employee from engaging in activities that would compete with the employer, both presently and in the future (after employment ceases). to keep information confidential. Trade Secret Affirmative Defenses (1)Independent Discovery (2)Reverse Engineering (3)Public Disclosure

Alice Corp. v. CLS Bank International

Facts: Alice Corp. is the assignee of several patents that disclose schemes to manage certain forms of financial risk. The claims at issue relate to a computerized scheme for mitigating "settlement risk,"—the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. The claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary. CLS Bank operates a global network that facilitates currency transactions. Business method patents. Alice Invention: •The patents relate to a computerized trading platform used for conducting financial transactions in which a third party settles obligations between a first and a second party so as to eliminate "counterparty" or "settlement" risk •The method is a form of third-party escrow that helps overcome the risk of fraud and non-payment. •A third party who is "trusted" - a guarantor for the transaction Issue: Whether the claims on the computer-implemented scheme are abstract ideas, ineligible for patent protection. Procedural History: CLS Bank sued Alice Corp., seeking a declaratory judgment that the claims are invalid. The district court held the claims to be ineligible. The Federal Circuit (three-judge panel) reversed. On rehearing en banc, the Federal Circuit reversed the panel opinion, affirming the district court. Holding: The claims at issue are abstract ideas. Merely requiring generic computer implementation fails to transform an abstract idea into a patent-eligible invention.

Atari, Inc. v. N. Am. Phillips Consumer Elecs. Corp.

Facts: Atari and Midway own the copyright in PAC-MAN. North American Phillips Consumer Electronics Corp. ("North American") developed a game called "K.C. Munchkin," which resembles the PAC-MAN game. Issue: Did North America's K.C. Munchkin game infringe upon Atari's copyrighted PAC-MAN game? Procedural History: Atari and Midway sued North American. They moved for a preliminary injunction. The district court denied their motion. Atari and Midway appealed. Holding: Reversed. North American copied elements of the PAC-MAN game that constitute protected expression. Reasoning: Copyright protection does not extend to rules of a game because the rules represent abstract ideas. However, some elements of a game do merit minimal protection (e.g., design of the board with artistic expression). To clarify the line between idea and expression, some courts apply the scènes à faire doctrine in the literary context. Scènes à faire refers to incidents, characters, or settings that are indispensable or at least standard in discussing a particular topic. Certain expressions in PAC-MAN should be treated as scènes à faire and receive protection only from identical copying: the maze, scoring table, and tunnel exits are standard game devices; the use of dots to score points is commonly used to measure a player's performance. The central character of the "gobbler" and the pursuit by "ghost monsters" sets PAC-MAN apart from other video games. North American portrayed these characters in a way that made K.C. Munchkin look similar to PAC-MAN. The K.C. Munchkin gobbler had similar features to the PAC-MAN gobbler: the body, mouth, size, shape, and movement in particular. These elements that K.C. Munchkin copied were protected expression.

Buffets Inc. v. Klinke

Facts: Buffets Inc. operates a chain of restaurants called Old Country Buffet (OCB). A founder of OCB, Dennis Scott, developed the first OCB menus. In 1990, Scott met the Paul Klinke (who was also in the restaurant business) and gave him a tour of one of the OCB restaurants. Klinke later arranged for one of his former employees, Jack Bickle, to begin working at one of the OCB restaurants. In doing so, Klinke asked Bickle to provide him with OCB recipes and to get his son, Greg, a job as a cook at one of the OCB stores. Bickle refused Klinke's requests. Greg Klinke (Paul Klinke's son) then applied for a job as a cook at OCB. Greg did not disclose his experience working for his father, nor the fact that he was still on his father's payroll. Reasoning: Trade secret law protects an author's ideas if the ideas possess "some novelty," and remain undisclosed (or disclosed only on the basis of confidentiality). Although the OCB recipes were very detailed, the amount of detail does not imply novelty. Those details were readily ascertainable. The recipes also were obvious, used in many buffet restaurants throughout the country. Little effort would be necessary to ascertain them. More than the mere origins lie in the public domain: the recipes themselves—not mere components—are in the public domain. OCB also failed to demonstrate that its recipe had independent economic value. It failed to show that it derived any benefit from its recipes being held secret.

Forest Laboratories, Inc. v. Pillsbury Co.

Facts: Forest Labs (Forest) produces and packages sweetener tablets. Prior to March 1965, Forest held secret a particular step of its packaging process (the step deals with the temperature of the room prior to packaging the tablets). In March 1965, Forest publicly disclosed that step through a patent that issued. Prior to the issuance date, Pillsbury—a competitor of Forest—had begun using that trade secret, apparently learning of it through improper means [the court does not discuss that fact]. Issue: Does the packaging process constitute a trade secret? More specifically, is the step of the packaging process not generally known? Procedural History: Forest sued Pillsbury for appropriating its trade secret. The district court held for Forest. Pillsbury appealed. Holding: Forest held a trade secret prior to the patent issuance; the step at issue was not generally known. Reasoning: Unlike patent law, uniqueness (or novelty) of information is not essential for a trade secret. Whereas patent laws are designed to encourage invention, trade secret law is designed to protect against a breach of faith. Reasoning: That said, a trade secret must possess "at least that modicum of originality which will separate it from everyday knowledge." The idea does not need to be complicated; it may be very simple. It simply cannot be a matter of common knowledge. Precedent suggests considering six factors: 1. The extent to which the information is known outside of the claimant's business. 2. The extent to which it is known by employees and others involved in his business. 3. The extent of measures taken by him to guard the secrecy of the information. 4. The value of the information to him and his competitors. 5. The amount of effort or money expended by him in developing the information. 6. The ease or difficulty with which the information could be properly acquired or duplicated by others. Here, evidence suggests that these criteria are met. However, at the issuance of the patent, the trade secret was destroyed.

Diamond v. Chakrabarty

Facts: In 1972, Chakrabarty filed a patent application for a human-made, genetically engineered bacterium. The bacterium was capable of breaking down crude oil, which would be valuable for treating oil spills. No known naturally occurring bacteria possessed this capability. The patent examiner rejected a patent claim for the bacteria on the grounds that micro-organisms are "products of nature," and as living things, they are not patentable subject matter. Issue: Whether Chakrabarty's micro-organism constitutes a "manufacture" or "composition of matter" within the meaning of the statute. Procedural History: The patent examiner denied the claim. The Court of Customs and Patent Appeals held the bacteria was patentable subject matter. Holding: Affirmed. The bacterium qualifies as a patentable subject matter because it is a non-naturally occurring manufacture or composition of matter. Reasoning: The ordinary definitions of manufacture and composition of matter suggest broad application of patentable subject matter. The legislative history indicates that Congress intended the subject matter to "include anything under the sun that is made by man." Reasoning: Despite the wide scope of subject matter, laws of nature, physical phenomena, and abstract ideas are not patentable. These limitations, however, do not apply here: the bacteria cannot be found in nature and it is not a physical phenomenon. Grant or denial of patents in this area is not likely to affect genetic research or its risks. The scientific mind will continue whether or not patents are granted or not. Brennan Dissent: Role of Congress to expand patent laws

Mason v. Jack Daniel Distillery

Facts: In 1980, Tony Mason created a mixed drink that he named Lynchburg Lemonade. The drink consisted of Jack Daniel's whiskey, Triple Sec, sweet and sour mix, and 7-Up. Mason began serving the beverage at his restaurant and lounge where it became extremely popular. In February 1982, a sales rep for Jack Daniel Distillery (JDD), Winston Randle, came to Mason's restaurant. While there, Randle drank some Lynchburg Lemonade. Mason claims that he told Randle part of the recipe on the understanding that JDD would use Mason and his band to advertise Lynchburg Lemonade. Randle then informed his superiors at JDD about Lynchburg Lemonade. A year later, JDD developed a national campaign for Lynchburg Lemonade—without using Mason to promote it and without providing Mason any compensation. Reasoning: Absolute secrecy is not required for the recipe for Lynchburg Lemonade to constitute a trade secret—"a substantial element of secrecy is all that is necessary to provide trade secret protection." Mason took precautions to protect the secrecy of Lynchburg Lemonade. He told only a few of his employees—the bartenders—the recipe, and he told them not to tell anyone. He ensured that the drink was mixed in the "back" of the restaurant so that customers could not see how it was made. The success of his efforts was apparent because a Lynchburg Lemonade was not available in any other restaurant. Although some evidence suggested that the drink was like many other drinks that has "essentially the same elements," Mason's ability to combine the elements into a successful beverage—like the creation of a recipe from common cooking ingredients—was not common knowledge. "[T]he fact that every ingredient is known to the industry is not controlling, for the secret may consist of the method of combining them which produces a product superior to that of competitors." If not written done, not a copyright; if just an idea not a copyright

Larami Corp. v. Amron

Facts: Larami manufactures toy water guns called "Super Soakers." Amron owns patent '129 that covers a water gun, similar to the Super Soakers, that operates by pressurizing water in a tank with an air pump. The pressure enables the water to travel out of the tank through a trigger-operated valve into an outlet tube and to squirt through a nozzle. The '129 contains electrical features to illuminate the water stream and create noises. The Super Soaker does not. Moreover, the water tank in the '129 patent is not detachable—it is contained in the housing body of the water gun. Issue: Does the Super Soaker literally infringe the '129 patent? Holding: The Super Soaker does not literally infringe the '129 patent because Amron failed to show that all elements of claim 1 were present in the Super Soaker. Reasoning: To meet the burden of establishing literal infringement, a patent owner must show the presence of every element or its substantial equivalent in the accused device. Even if one element of a patent's claim is missing from the accused product, then there is no infringement. Reasoning: Amron claims that Super Soaker literally infringes claim 1 of the '129 patent. Claim 1 requires that the toy gun have "an elongated housing having a chamber therein for a liquid." Amron argues that Super Soaker contains a "chamber therein for a liquid" as well as a detachable reservoir. However, it is difficult to understand where this "chamber therein" is located. The only thing close to a chamber is the external water reservoir at the top of the housing. The water is located within the housing of the Super Soaker only when the trigger is pulled.

eBay Inc. v. MercExchange, LLC

Facts: MercExchange holds a business method patent for an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among participants. eBay (and Half.com) allow private sellers to list and sell their goods through an online auction or at a fixed price. Issue: Where a patentee has established infringement against a defendant, what, if anything, must the patentee demonstrate to obtain injunctive relief against the defendant? Procedural History: A district court jury found MercExchange's patent to be valid, eBay had infringed that patent, and awarded damages to MercExchange. Following the jury verdict, the district court denied MercExchange's motion for permanent injunctive relief using the traditional four-factor test. The Federal Circuit reversed, applying its "general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances." Reasoning: A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant relief. A plaintiff must show: 1. that it has suffered an irreparable injury; 2. that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; 3. that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 4. that the public interest would not be disserved by a permanent injunction. The decision to grant or deny injunctive relief lies within the equitable discretion of the district court, reviewable on appeal for abuse of discretion. The Patent Act provides that injunctions "may" issue in accordance with principles of equity. The Patent Act treats patents like personal property, including the right to exclude others from making, using, offering for sale, or selling the invention.

Association for Molecular Pathology v. Myriad Genetics, Inc

Facts: Myriad discovered the precise location of two human genes in DNA that are associated with a woman's risk of developing breast and ovarian cancers. These genes are known as BRCA1 and BRCA2. This discovery enabled Myriad to develop medical tests that were useful for detecting mutations in these genes. The tests assess whether a patient has an increased risk of cancer. Myriad also developed a synthetically created DNA known as complementary DNA (cDNA), which contains the same coding information found in a segment of natural DNA but omits specific portions within the DNA segment. Issues: 1. Whether the isolation of a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible? 2. Whether a synthetically created DNA (cDNA) is patent eligible? Procedural History: Medical organizations sued the patentee and PTO, challenging validity of claims. PTO moved for judgment on the pleadings. The district court granted the motion. The Federal Circuit affirmed in relevant part (finding DNA and cDNA to be patentable). Medical organizations appealed. Holding: 1. A naturally occurring DNA segment is a product of nature and not patent eligible. 2. A synthetically created DNA (cDNA) is patent eligible because it is not naturally occurring. Reasoning: The Location of the Genes Myriad did not create or alter any of the genetic information encoded in BRCA1 and BRCA2 genes. Myriad's principal contribution was identifying the precise location and sequence of the genes, but the location and sequential order exists in nature independent of Myriad's actions. Unlike Chakrabarty, Myriad did not create or invent anything that was not found in nature.

White v. Samsung Electronics America, Inc. (9th Cir. 1993)

Facts: Samsung created an advertisement that featured a robot that was dressed and performed in a way that was similar to how Vanna White turns letters on the Wheel of Fortune gameshow. As a result of this ad, White sued Samsung for violating her right of publicity. Issue: Did Samsung's portrayal of the robot in a way that was similar to White violate White's right of publicity? Because White has alleged facts showing that Samsung and Deutsch had appropriated her identity, the district court erred by rejecting, on summary judgment, White's common law right of publicity claim. Reasoning of Judge Kozinski (dissent from denial of rehearing): The right of publicity under California law consists of a right to a celebrity's name, likeness, voice, or signature. But Samsung's commercial did not use White's name, her voice, or her signature. Nor did it use her likeness. No one would look at the robot and think it was White. Rather, the robot merely reminds viewers of White. Recognizing a right of publicity violation for merely bringing to mind the identity of White would greatly expand the right. It would alter the delicate balance between intellectual property and public use of expression to further creative endeavors. Reasoning of Judge Kozinski: Intellectual property is "full of careful balances between what's set aside for the owner and what's left in the public domain for the rest of us." These balances enable the public to build freely on others' intellectual creations. IP rights exist to further the broader purpose of advancing the progress of science and art. The outcome is not unfair; it is the essence of the intellectual property system. White is profiting from her identity just as much as Samsung is. Why should she have rights to control how others portray her identity, without any limitation, especially given that she is using this right for commercial purposes?

AMF v sleekcraft

Facts: AMF uses the mark slickcraft, and nescher uses sleepcraft Issue: the crux of this appeal is whether concurrent use of the two marks is likely to confuse the public -whether slickcraft is descriptive or suggestive of appellants boats Holding: the district judge held that confusion was unlikely. We disagree -we therefore affirm the district courts finding that, dispute the potential market overlap, the two lines are not competitive -we hold that the marks are quite similar on all three levels -reversed and remanded Rule: when the goods produced by the alleged infringer compete for sales with those of the trademark owner, infringement usually will be found if the marks are sufficiently similar that confusion can be expected. When the goods are related, but not competitive, several other factors are added to the calculus. If the goods are totelly unrelated, there can be no infringement because confusion is unlikely -in determining whether confusion between related goods is likely, the following factors are relevant: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendants intent in seleting the mark; and (8) likelihood of expansion of the product lines -strength of the mark- a strong mark is inherently distinctive, for example, an arbitrary or fanciful mark; it will be afforded the widest ambit of protection from infringing uses. A descriptive mark tells something about the product; it will be protected only when secondary meaning is shown. In between lie suggestive marks whivh subtly connote something about the products. A suggestive mark will be protected without proof of secondary meaning Although the distinction between descriptive and suggestive marks may be inarticulable, several criterial offer guidance. The primary criterion is imaginativeness involved in the suggestion, that is, how immediate and direct is the thought process from the mark to the particular product. A secondary criterion is whether granting the trademark owner a limited monopoly will in fact inhibit legitimate use of the mark by other sellers -anOTHER CRITERION IS WHETHER THE MARK is actually viewed by the public as an indication of the products original or as a self serving descript -only if the marks are quite similar, and the goods closely related, will infringement be found -less similarity between the marks will suffice when the goods are complementary -slight differences in the sound of trademarks will not protect the infringer -closeness in meaning can itself substantiate a claim of similarity of trademarks -evidence that use of the two marks has already led to confusion is persuasive proof that future confusion is likely -the failure to prove instances of actual confusion is not dispositive. This factor is weighed heavily only when there is evidence of past confusion or perhaps when the particular circumstances indicate such evidence should have been available -in assessing the likelihood of confusion to the public, the standard used by the courts is the typical buyer exercising ordinary caution. The standard includes the ignorant and the credulous. When the buyer has expertise in the field, a higher standard is proper though it will not preclude a finding that confusion is likely. When the goods are expensive, the buyer can be expected to exercise greater care in his purchases; again though, confusion may still be likely -good faith is less probative of the likelihood of confusion, yet may be given considerable weight in fashioing a remedy -likelihood of expansion- inasmuch as a trademark owner is afforded greater protection against competing goods. A strong possibility that either party may expand his business ot compete with the other will weigh in favor of finding that the present use is infringing. When goods are closely related, any expansion is likely to result in direct competition

Abercrombie and fitch v hunting world

Facts: abercrombie and fitch sued hunting wworld in the district court, seeking an injunction against defendants uses of the word safari, which plaintiff had registered as a trademark for various classes of goods Holding: we conclude that genuine issues of fact exist ehich made it improper to enter a summary judgment finally denying even in part the injunctive relief sought by plaintiff

Larami corp v amron

Facts: amron, a manufacturer of toy water guns, claimed that larami corp, another manufacturer, had infringed on its patent Rule: literal infringement of a patent cannot be proven if the accused product is missing even one element of the claim -in order ot show infringement under the doctrine of equivalents, the patent owner must prove that the accused product has the substantial equivalent of every limitation or element of a patent claim. In patent cases, summary judgment is appropriate where the accused product does not literally infringe the patent and where the patent owner does not gather evidence that is sufficient to satisfy the legal standard for infringement under the doctrine of equivalents Issue: does the absence of even a single element of a patents claim from the accused product mean there can be no finding of literal infringement Holding: yes

White v samsung electronics america inc

Facts: in running a particular ad without vanna whites permission, defendants samsung and david deutsch associates attempted to capitalize on whites fame to enhance their fortune Holding: we agree that the robot ad did not make use of whites name or likeness. However, the common law right of publicity is not so confined -because white has alleged facts showing that samsung and deutsch had appropriated her identity, the district court erred by rejecting on summary judgment, whites common law right of publicity claim Rule: specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiffs identity. The right of publicity does not require that appropriations if identity be accomplished through particular means to be actionable -if the celebritys identity is commercially exploited, there has been an invasion of his right whether or not his name or likeness is used -it is not important how the defendant has appropriated the plaintiffs identity, but whether the defendant has done so Reasoning: if we treated the means of appropriation as dispositive in our analysis of the right of publicity, we should not only weaken the right but effectively eviscerate it -viewed together, they leave little doubt about the celebrity the ad is meant to depict. Indeed, defendants themselves referred to their ad as the vanna white ad Kozinski dissent -overprotection stifles the very creative forces its supposed to nurture -intellectual property rights arent like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant -instead of having an exclusive right in her name, likeness, signature or voice, every famous person now has an exclusive right to anything that reminds the viewer of her -it impoverishes the public domain, to the detriment of future creators and the public at large -advertisers will not have to cope with vague claims of appropriation of identity, claims often made by people with a wholly exaggerated sense of their own fame and significance

Qualitex v jacobson

Facts: petitioner qualitex's use of a special shade of green gold color on the pads that it makes and sells to dry cleaning firms for use on dry cleaning presses. Respondent jacobson products (a qualitex rival) began to sell its own press pads to dry clearning firms; and it colored those pads a similar green gold. Qualitex registered the special green gold color on press pads with the patent and trademark office as a trademark Holding: we now hold that there is no rule absolutely barring the use of color alone, and we reverse the judgment of the 9th circuit -having determined that a color may sometimes meet the basic legal requirements for use as a trademark and that respondent jacobsons arguments do not justify a special legal rule preventing color alone from serving as a trademark (and in light of the district courts here undisputed findings that qualitexs use of the green gold color on its press pads meets the basic trademark requirements), we conclude that 9th circuit erred in barring qualitexs use of color as a trademark. The judgment the 9th circuit is reversed Rule: the lanham act gives a seller or producer the exclusive right to register a trademark and to prevent their competitors from using that trademark -trademarks include any word, name, symbol or device or any combination thereof -the functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firms reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature -A product feature is functional and cannot serve as a trademark, if it is essential to the use or purpose of if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non reputation related disadvantage -the functionality doctrine thus protects competitors against a disadvantage (unrelated to recognition or reputation) that trademark protection might otherwise import, namely their inability reasonably to replicate important non reputation related product features -the ultimate test of aesthetic functionality is whether the recognition of trademark rights would significantly hinder competition -where a color serves a significant nontrademark function courts will examine whether its use as a mark would permit one competitor(or a group) to interfere with legitimate (nontrademark related) competition through actual or potential exclusive use of an important product ingredient

Forest labs inc v pillsbury

Facts: plaintiff, a corporation engaged in producing and packaging effervescent sweetener tablets, sued defendant pillsbury, the well known manufacturer of food products, alleging that pillsbury had purloined certain forest trade secrets. One step of this packaging procedure was adjudged to be plaintiffs confidential trade secret. That step was described as follows: "before packaging, the tablets are to be tempered in a room having 40% or less relative humidity for a period of between 24-48" Rule: a trade secret may consist of any formula, pattern, device, or compilation of info which is used in one's business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a process of treating or preserving materials -uniqueness in the patent law sense is not an essential element of a trade secret, for the patent laws are designed encourage invention, whereas trade secret law is designed to protect against a breach of faith. However, the trade secret must possess at least that modicum of originality which will separate it from everyday knowledge -as distinguished from a patent, a trade secret need not be essentially new, novel or unique; therefore, prior are it less effective defense in a trade secret case than it is in a patent infringement case. The idea need not be complicated; it may be intrinsically simple and nevertheless qualify as a secret, unless it is in common knowledge and therefore within the public domain -determining that this tablet-tempering step was a trade secret- weigh 6 factors: 1. the extent to which the info is known outside of the claimants business 2. The extent to which it is known by employees and others involved in his business 3. the extent of measures taken by him to guard the secrecy of the info 4. the value of the info to him and his competitors 5. the amount of effort or money expended by him in developing the info The ease or difficulty with which the info could be properly acquired or duplicated by others -the user of another's trade secret is liable even if he uses it with modifications or improvements upon it effected by his own efforts, as long as the substance of the process used by the actor is derived from the others secret -a corporation which purchases the assets of another corporation does not, by reason of succeeding to the ownership of property, assume the obligations of the transferor corporation. Exceptions to this rule exist where (a) the purchasing corporation expressly or impliedly agrees the liabilities of the seller, (b) the transaction amounts to a consolidation or merger of the two companies, © the purchasing corporation is merely a continuation of the selling corporation, or (d) the transaction is entered into fraudulently to escape liability Reasoning: there was testimony that the tablets would sill equilibrate in closed containers, and might do so in a day or two if the container were only in a dry environment. The purpose of forests and pillsburys tablet tempering was to place the tablets in an ambient condition. In our opinion, there was insufficient difference in the two methods to absolve pillsbury from liability Holding: the evidence satisfied the disctrct court and satisfies us that these criteria were met by plaintiff until it had obtained a patent disclosing the tablet0tempering step. Since the element of secrecy evaporated with the issuance of the patent, the disctict court properly haled that pillsbury should not be held liable after the issuance of the patent

eBay cont

Holding: neither the district court nor the court of appeals below fairly applied these traditional equitable principles in deciding respondents motion for a permanent injunction -we hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than other cases governed by such standards Kennedy concurrence •The court is correct in my ciew to hold that courts should apply the well established four factor test- without resort to categorical rules- in deciding whether to grant injunctive relief in patent cases -The chief justice is also correct that history may be instructive in applying this test -The traditional practice of issuing injunctions against patent infringers however, does not seem to rest on the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentees wish es -The lesson of the historical practice, therefore, is most helpful and instructive when the circumstances of case bear substantial parallels to litigation the cours have confronted before •The potential vagueness and suspect validity of some of these patents may affect the calculus under the four factor test •It should be recognized that district courts must determine whether past practice fits the circumstances of the cases before them

right of publicity

In many jurisdictions, the right of publicity persists after death ( for 20 to 100 years, depending on the state), and can descend by will or intestacy -Most states extend the right of publicity to everyone, although usually it has substantial value only to celebrities- even (or especitlly) dead ones

What is the subject matter of a trade secret?

Information . . UTSA "including a formula, pattern, compilation, program, device, method, technique, or process . . . ." - UTSA §1 DTSA "all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing ...." - 18 U.S.C. § 1839

Mayo Collaborative Services v. Prometheus Laboratories, Inc.

Issue: Whether the claimed processes add enough to transform unpatentable natural laws into patent-eligible applications of natural laws? Procedural History: Prometheus sued Mayo. The district court ruled that Mayo's test infringed the patent, but ultimately granted summary for Mayo because the subject matter was ineligible. The Federal Circuit reversed the district court. Mayo appealed. Holding: Prometheus's processes constitute ineligible subject matter in the form of a law of nature. Reasoning: The relationship between the dosage of thiopurine and metabolites in the blood is an entirely natural process, and the patent describes that natural law. If a law of nature is not patentable, then neither is a process reciting a law of nature. However, a process may be patentable if it has additional features that show it is more than a drafting effort designed to monopolize the law of nature itself.

Alice corp v CLS bank

Issue: are claims to computer implemented inventions- including claims to systems and machines, processes and items of manufacture- patent eligible subject matter Facts: petitioner alice corp is the assignee of several patents that disclose a scheme for mitigating settlement risk. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third party intermediary. Respondents (CLS BANK) who operate a global network that facilitates currency transactions, filed suit against petitioner, arguing that the patent claims at issue are invalid, unenforceable, or not infringed. Petitioner countercliamed, alleging infringement Holding: because the claims are drawn to a patent ineligible abstract idea, they are not patent eligible under §101 -because petitioners system and media claims add nothing of substance to the underlying abstract idea, they too are patent ineligible Rule: §101, which defines the subject matter eligible for patent protection, contains an implicit excpetion for laws of nature, natural phenomena, and abstract ideas. In applying the §101 exception, this court must distinguish patents that claim the building blocks of human ingenuity, which are ineligible for patent protection, from those that integrate the building blocks into something more, thereby transforming them into a patent-eligible for invention. Using this framework, the court myst first determine wehther the claims at issue are directed to a patent-ineligible concept. If so, the court then asks whether the claims elements, considered both individually and as an ordered combination, transform the nature of the claim into a patent eligible application -under the longstanding rule that an idnea of itself is not patentable, this court has found ineligible patent claims involving an algorithm for converting bimary coded decimal numerals into. pure binary for,; a mathmatical formula for computing alarm limits in a catalytic conversion process; and most recently, a method for hedging against the financial risk fo price fluctuations Reasoning: the claims at issue are directed to an abstract idea -the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent eligible invention -neither stating an abstract idea while adding the words "apply it", nor limiting the use of an abstract idea to a particular technological environment is enough for patent eligibility -this court has long warned against interpreting 101 in ways that make patent eligibility depend on simply the draftsman art. Holding that the system claim are patent eligible would have exactly that result

Feist publications inc v rural telephone service

Issue: this case requires us to clarify the extent of copyright protection available to telephone directory white pages facts: rural publishes a typical telephone directory, consisting of white pages and yellow pages. Feist published a telephone directory, containing both white and yellow pages, covering a much larger geographic area. Feist requested a license to rural's listings; rural refused. Feist used them without rurals consent. Rural sued for copuright infringement Rule: facts are not copurightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity -to be sure, the requisite level of creativity is extremely low; even a slight amount possess some creating spark, no matter how crude, humble or obvious it might be. Originality dos not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying -no one may claim originality as to facts. The first person to find and report a particular fact has not created the fact; they have merely discovered its existence -factual compilations, on the other hand, may possess the requisite originality. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that congress may protect such compilations through the copyright laws Reasoning: the selection, coordination, and arrangement of rurals white pages do not satisfy the min constitutional standards for copyright protection. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity -feist points out that rural did not truly select to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the kansas corporation commission as part of its monopoly franchise -the white pages do nothing more than list rurals subscribers in alphabetical order. This arrangement may, technically speaking, owe its origin to rural Holding: because rurals white pages lack the requisite originality, feists use of the listings cannot constitute infringement

Diamond v chakrabarty

Issue: whether a live, human made micro-organism is patentable subject matter udner 25 USC -whether respondents microorganism constitutes a manufacture or composition of matter within the meaning of the statute Reasoning: we begin with the language of the staatute. This court has read the term manufacture in 101 in accordance with its dictionary definition to mean the production of articles for use for raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery -similarly, composition of matter has been construed consistent with its common usage to include all compositions of two or more substances and all composite articles, whether they be the results of chemical union or of mechanical mixture, or whether they be gases, fluids, powders or solids. The relevant legislative history also supports a broad construction -his claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter- a product of human ingenuity having a distinctive name, character and use -here, by contrast, the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility Holding: responents microorganism qualifies as patentable subject matter Facts: respondent chakrabarty, a microbiologist, filed a patent application. The application asserted 36 claims related to chakrabartys invention of a bacterium from the genus pseudomonas containing therein at least two stable energy generating plasmids Rule: the constitution grants congress broad power to legislate to promote the prograss of science and useful arts, by securing for limited times ot authors and inventors the exclusive right to their respective writings and discoveries. The patent laws promote this progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research efforts -wheever invents or discovers any new and useful process, machine, manufacturer, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title Brennan dissent -I believe the court has misread the applicable legislation -in 1930 congress enacted the plant patent act affording patent protection to developers of certain asexually reproduced plants. These acts strongly evidence a congressional limitation that exclydes bacteria from patentability -second, the 1970 act clearly indicates that congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection After chakrabarty, what counts as a product of nature -The court held that the breast cancer gene itself was not patentable -The court held that isolating a sequence that already existed in human DNA did not satisfy chakrabarty's requirements

Castle rock entertainment v carol publishing

Issue: whether the seinfeld aptitute test, a trivia quiz book devoted exclusively to testing its readers recollection of scenes and events from the fictional television series seinfeld, takes sufficient protected expression from the original, as evidenced by the books substantial similarity to the television series, such that in the absenses of any defenses the book would infringe the copyright in seinfeld. -whether the seinfeld aptitude test (also referred to as the SAT) constitutes fair use of the seinfeld television series -whether the copying was unlwful or improper in that it took a sufficient amount of protected expression from seinfeld as evidenced by its substantial similarity to such expression Holding: we conclude that the SAT unlawfully copies from seinfeld and that its copying does not constitute fair use and thus is an actionable infringement -we conclude that the copyright laws objective to promote the progress of science and useful arts would be undermined by permitting the SATs copying of seinfeld and we therefore reject defendants fair use defense Facts: the name seinfeld appears prominently on the front and back covers of the SAT. The front cover bears the title the seinfeld aptitude test and describes the book as containing hundreds of spectacular questions of minute details fro TVs greatest show about absolutely nothing. Castle rock notified defendants of its copyright and trademark infringement claims. After defendant continued to distribute the SAT, castle rock filed this action alleging federal copyright and trademark infringement and state law unfair competition -defendants claim the SAT is nevertheless a fair use of seinfeld Rule: the copyright act of 1976 grants copyright owners a bundle of exclusive rights, including the rights to reproduct the copyrighted work in copies and to prepare derivative works based upon the copyrighted work. Copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying. There are two main components of this prima facie case of inringement: a plaintiff must first show that his work was actually copied and then must show that the copying amounts to an improper or unlawful appropriation Actual copying may be established either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probatie of copying between the works, and expert testimony. It is only after actual copuing is establisehd that one claiming infringement then proceeds to demonstrate that the copying was improper or unlawful by showing that the second work bears substantial similarity to protected expression in the earlier work -substantial similarity requires that the copying be quantitatively and qualitativly sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression rather than ideas, facts, works in the public domain, or any other non-protectable elements. The quantitative component generally concerns the amount of the copyrighted work that is copied, which must be more thatn de minimis

Common Law Exceptions: patent

Laws of Nature physical phenomena abstract ideas How do we know whether subject matter falls within one of these patent-ineligible categories? Two-Step Test (Mayo test) 1. Ask whether the patent is directed toward one of these categories. 2. If so, ask whether the patent has an inventive concept If the subject matter is directed toward one of these categories, but it has an inventive concept, then it is still patent eligible.

Alice corp cont

Reasoning: In determining whether the claims at issue are abstract ideas or patent eligible, the Court referred to the following framework (apparently) established in Mayo: 1. First, the Court must determine whether the claims at issue are directed to one of the patent-ineligible concepts (laws of nature, natural phenomena, and abstract ideas). 2.If so, the Court must ask what else is there in the claims. In answering this second question, the Court must consider the elements of each claim (1) individually and (2) as an ordered combination to determine whether the additional elements transform the nature of the claim into a patent-eligible application. Reasoning: The second step constitutes a search for an "inventive concept," which is an element or combination that amounts to more than the ineligible concept. The transformation into a patent-eligible application requires more than simply stating the abstract idea and adding the words "apply it." STEP 1. The claims here are directed towards a patent-ineligible concept (abstract ideas). The concept of intermediated settlement is a fundamental economic practice. Use of a third-party intermediary is also a building block of the modern economy. Therefore, the claims are within the realm of "abstract ideas." STEP 2. Introducing a computer into a claim does not result in an inventive concept. Alice Corp.'s claimed method requires the use of a computer to create electronic records, track multiple transactions, and issue simultaneous instructions. All these activities are well-known in the industry. The computer functionality is purely conventional. Considered as an ordered combination, the claims add nothing that is not already present when each step is considered separately. They recite an instruction to apply the abstract idea of intermediate settlement.

castle rock 3

Reasoning: as the the quantitative element, we conclude that the SAT has crossed the minimis threshold. By copying not a few but 643 fragments from the seinfeld television series, however, the SAT has plainly crossed the quantitative copying threshold unde ringgold. -as to ringgolds qualitative component, each SAT trivia question is based directly upon original, protectable expression in seinfeld. The SAT did not copy from seinfeld unprotected facts, but rather creative expression -each fact tested by the SAT is in reality fictitious expression by seinfelds authors -although seinfeld could not be recreated from the SAT, castle rock has nevertheness established both the quantitative and qualitative components of the substantial similarity test, establishing a prima facie case of copyright infringement -that the SATs use is commercial, at most, tends to weigh against a finding of fair use -the fact that the subject matter of the quiz is plebian, banal, or ordinary stuff deos not alter the fair use analysis -any transformative purpose possessed by the SAT is slight to non-existent. We reject the argument that the SAT was created to educate seinfeld viewers or to criticize, expose, or otherwise comment upon seinfeld. The SATs author, described the trivia quiz book not as a commentary or a seinfeld research tool, but as an effert to capture seinfeld flavor in quiz book fashion. The book does not contain commentary or analysis about seinfeld, nor does it suggest how the SAT can be used to research seinfeld; rather the book simple poses trivia questions -the fact that the SAT so minimally alters seinfelds original expression in this case is further evidence of the SATs lack of transformative purpose -the second statutory factor favors the plaintiff -the SATs purpose was entertainment, not commentary. The SAT does not serve a critical or otherwise transformative purpose. Accordingly, the third factor weighs against fair use. Seinfelds audience grew after publication of the SAT, and castle rock has evidenced no interest in publishing seinfeld trivia quiz books and only minimal interest in publishing seinfeld related books -because the SAT borrows exclusively from seinfeld and not from any other television or entertainment programs, the SAT is likely to fill a market niche that castle rock would in general develop. SAT pays homage to seinfeld. -the fourth statutory factor therefore factor therefore favors castle rock -one factor that is of no relevance to the fair use equation, however, is defendants continued distribution of the SAT after castle rock notified defendants of its copyright infringement claim, because if the use is otherwise fair, then no permission need be sought or granted. Being denied permission to use a work does not weigh against a finding of fair use -we also note that free speech and public interest considerations are of little relevance in this case, which concerns garden-variety infringement of creative fictional works

qualitex cont

Reasoning: both the language of the act and the basic underlying principles of trademark law would seem to include color within the universe of things that can qualify as a trademark Since human beings might use as a symbol or device almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive -a color is also capable of satisfying the more important part of the statutory definition of trademark, which requires that a person use or intent to use the mark to identify and distinguish their goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if tha source is unknown -over time, customers may come to treat a particular color on a product or its packaging as signifying a brand. And if so, that color would have come to identify and distinguish the goods I.e. to indicate their source- much in tha way that descriptive words on a product can come to indicate a products original -we cannot find in the basic objectives of trademark law any obvious theoretical objection to the use of color alone as a trademark, where that color has attained secondary meaning and therefore identifies and distinguishes a particular brand -neither can we find a principled objection to the use of color as a mark in the important functionality doctrine of trademark law -the fact that sometimes color is not essential to a products use or purpose and does not affect cost or quality- indicates that doctrine of functionality does not create an absolute bar to the use of color alone as a mark -color can act as a sumbol that distinguishes a firms goods and identifies their source, without serving any other significant function. The green gold color as qualitex's it identifis the press pads source. And the green gold color serves no other funciton -jacobson says that, if thr law permits the use of color as a trademark it will product uncertainty and unresolvable court disputes about what shades of color a competitor may lawfylly use. We do not believe however, that color in this respect is special. Courts traditionally decide quite difficult questions about whethe rtwo words or phrases or symbols are sufficiently similar, in context, to confuse buyers. They have had to compare, for example, such words as bonamine and dramamine -if that is not so- if a color depletion or color scarcity problem does arise- the trademark doctrine of functionality normally would seem available to preent the anticompetitive consequences that jacobsons argument posts, thereby minimizing that arguments practical force -that examination should prevent the anticompetitive consequences of Jacobson's hypotherical color depletion argument when, and if, the circumstances of a particular case threaten color depletion -the lanham act extended protection to descriptive marks by making clear that nothing shall prevent the registration of a mark used by the applicant which has become distinctive of the applicants goods in commerce This language permits an ordinary wors, normally used for a nontrademark purpose (eg description), to act as a trademark where it has gained secondary meaning. Its logic would appear to apply to color as well -jacobson argues that there is no need to permit color alone to function as a trademark because a firm already may use color as part of a trademark and may rely upon trade dress protection. Trademark law helps the holder of a mark in many ways that trade dress protection does not. Thus, one can easily find reasons why the law might provide trademark protection in addition to trade dress protection

AMF cont

Reasoning: the slickcrafe line is designed for a variety fo activities: fishing, water skiing, pleasure cruises and sunbathing. Sleekcraft boats are not for families. They are low-profile racing boats designed for racing, high speed cruises and water skiing -from the word slickcraft one might readily conjure up the image of appellants boats, yet a number of other images might also follow -there is no evidence here that others have used or desire to use slickcraft in describing their goods -we think buyers probably will understand that slickcraft is a trademark, particularly since it is generally used in conjunction with the mark AMF -they are so closely related that a diminished standard of similarity must be applied when comparing the two marks -standing alone the words sleekcraft and shekcraft are the same except for two inconspicuous letters in the middle of the first syllable. To the eye, the words are similar -the names appear dissimilar when viewed in conjunction with the logo, but the logo is often absent. The exhibits show that the word sleekcraft is frequently found alone in trade journals, company stationary, and various ads -although nescher is correct in asserting that use of a housemark can reduce the likelihood of confusion, the effect is negligible here even though AMF is a well known house name for recreational equipment. The exhibits show that the AMF mark is down played in the brochures and ads; the letters AMF are smaller and skewed to one side -we must consider the entire mark -we recognize that the two sounds can be distinguished, but the difference is only in a small part of one syllable -the words are virtual synonyms -the amount of past confusion was negligible -marketing channels- there is no evidence in the record that both lines were sold under the same roof except at boat shows; the normal marketing channels used y both AMF and nescher are however parallel. The same sales methods are employed. The price ranges are almost identical. Each line is advertised extensively though different national magazines are used -type of goods and purchaser care- both parties produce high quality, expensive goods. The boats are purchased only after thoughtful, careful evaluation of the product and the performance the purchaser expects -the care exercised by the typical purchaser, though it might virtually eliminate mistaken purchases, does no guarantee that confusion as to association or sponsorship is unlikely -common sense and the evidence indicate this is not the type of purchase made only on general impressions. This inattention to trade symbols does reduce the possibilities for confusion -when the alleged infringers goods are of equal quality, there is little harm to the reputation earned by the trademarked goods. Equivalence in quality may actually contribute to the assumption of a common connection -intent- nescher was unaware of appellants use of the slickcraft mark when he adopted the sleekcraft name. There was no evidence that anyone attempted to palm off the latter boats for the former. Appellee's good faith cannot be questioned -the potential that one or both of the parties will enter the others submarket with a competing model is strong

The Purpose of Patent

Right to exclude others from making, using, selling, or importing inventions 35 U.S.C. § 271 •incentivizes the creation and disclosure of valuable inventions; The Cost of Patent -creates barrier for public to access invention -market weaknesses exist (those in need cannot afford; patent trolls; high cost of securing). Components of the Patent Application (1) document called the specification (A) includes a written description - describes the invention - enables one skilled in that art to perform or make the invention - describes best mode of carrying out invention (B) includes a section of claims - sets forth limitations of the rights to the invention (2) drawings (3) oath or declaration by inventor (that she is original inventor); and (4) filing fees

Ebay v mercExchange

Rule: a federal court considering whether to award permanent injunctive relief to a prevailing plaintiff applies the 4 factor test historically employed. by courts of equity -a plaintiff seeking a permanent injunction must satisfy a four factor test before a court may grant such relief. A plaintiff must demonstrate: (2) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion -the patent act expressly provides that injunctions may issue in accordance with principles of equity -the patent act also declares that patents shall have the attributes of personal property, §261 including the right to exclude others from making, using, offering for sale, or selling the invention. Indeed, the patent act itself indicates that patents shall have the attributes of personal property subject to the provisions of this title, including presumably the provision that injunctive relief may issue only in accordance with the principles of equity -like a patent owner, a copyright holder possesses the right to exclude others from using his property -like the patent actr, the copyright act provides that courts may grant injunctive relief on such terms as it may deem reasonable to prevent or restrain infringement of a copyright Reasoning: this court has consistently rejected invitations to replace traditional equitable consideration with a rule that an injunction automatically follows a determination that a copyright has been infringe -the district court concluded that a plaintiffs willingness to license its patents and its lack of commercial activity in practicing the patents would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not suffer irreparable harm if an injunction did not issue. but traditional equitable principles do not permit such broad classifications -the courts categorical rule is also in tension with continental paper bag v easter paper bag, which rejected the contention that a court of equity has no jurisdiction to grant injunctive relief to a patent holder who has unreasonably declined to use the patent -the court of appeals erred in its categorical grant of such relief

Mayo collaborative services v prometheus laboratories

Rule: although laws of nature, natural phenomena, and abstract ideas are not patentable subject matter under §101 of the patent act, an application of a law of nature to a known structure or process may deserve patent must do more than simple state the law of nature while adding the words "apply it". It must limit its reach to a particular, inventive application of law Facts: respondent, promethus is the sole and exclusive licensee of the two patents at issue, which concern the use of thiopurine drugs to treat autoimmune diseases. Prometheus sued mayo contending that mayos test infringed its patents Rule: because the laws of nature recited by prometheus' patent claims- the relationships between concentrations of certain metabolities in the blood and the likelihood that a thiopurine drug dosage will prove ineffective or cause harm- are not themselves patentable, the claimed processes are not patentable unless they have additional features l assurance that the processes are genuine applications of those laws rather than drafting efforts designed to monopolize the correlations -simply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable Reasonable: the three additional steps in the claimed processes here are not themselves natural laws but neither are they sufficient to transform the nature of the claims. The administering step- doctors had been using these drugs for this purpose long before these patents existed. And a prohibition against patenting abstract ideas cannot be circumvented by attempting to limit the use of the formula to a particular technological environment. The wherein clauses simply tell a doctor about the relevant natural laws, adding at most a suggestion -the determining step- such activity is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law. Finally considering the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately -but because those laws and principles are the basic tools of scientific and technological work, there is a danger that granting patents that tie up their use will inhibit future innovation, a danger that becomes acute when a patented process is no more than a general instruction to apply the natural alw, or otherwise forecloses more future invention that the underlying discovery could reasonably justify. The patent claims at issue implicate this concern Holding: the processes at issue are not patent eligible

Fair Use

Section 107 of the Copyright Act states: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1)the purpose and character of the use, including whether such use is of a 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

COPYRIGHT act

The Copyright Act (§106(2)) provides a copyright owner a right "to prepare derivative works based upon the copyrighted work." What is a derivative work? Answer: "A work based upon one or more preexisting works." §101. What determines whether a work is sufficiently based on a preexisting work to be derivative? A copyright owner has a right to distribute her copyrighted work to members of the public. She exercises this right when she sells, gives, or transfers possession of a physical copy to a member of the public. The first sale doctrine allows someone who lawfully owns a physical copy of a copyrighted work to transfer ownership (or possession) of that copy without violating the copyright owner's right of distribution. What if a person transfers ownership of an infringing copy? Answer: The first sale doctrine does not apply to infringing copies. Distribution of an infringing copy would violate the the copyright owner's right of distribution.

eBay 2

The district court applied the four-factor test, but adopted expansive principles broadening the application of the test. Traditional equitable principles do not permit broad classifications. The court of appeals, in reversing the district court, did not apply the four-factor test. The court applied a general rule that a "permanent injunction will issue once infringement and validity have been adjudged." Justice Kennedy's Concurrence: An industry has developed where firms use patents not as basis of producing and selling goods, but primarily for obtaining licensing fees (i.e., patent trolls). The potential vagueness and suspect validity of some of the patents may affect the four-factor analysis, so that injunctive relief may be denied as circumstances warrant. The principle of equitable discretion allows courts to adapt to rapid technological and legal developments in the patent system.

trade secret law

Trade-secret law protects against persons acquiring information through improper means and from being disclosed without authorization. Trade secrets may last into perpetuity. Governed by Federal and State regimes. •Federal - Defend Trade Secrets Act of 2016 (DTSA) •State - Uniform Trade Secrets Act (UTSA) A trade-secret owner has a right to prevent, or be compensated for, misappropriation of the trade secret. What constitutes misappropriation? There are two ways to misappropriate a trade secret. (1)acquire the protected information through improper means. (2)disclose the protected information where disclosure breaches a duty to keep the information confidential (or where the information was acquired through improper means). These two means for misappropriating a trade secret often depend on one of the following situations occurring: first, a person has acquired the information through improper means; or second, a person has breached a duty to keep the information confidential.

constitution

copyright and patent: The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; trademark and trade secret: The Congress shall have Power . . . To regulate Commerce . . . among the several States

castle rock cont

rule 2 -the standard for determining copyright infringement is not whether the original could be recreated from the allegedly infringing copy, but whether the latter is substantially similar to the former -the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and charater of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work -fair use analysis therefore always calls for case by case analysis The four listed statutory factors in §107 guide but do not control our fair use analysis and are to be explored, and the results weighed together, in light of the purposes of copyright. The factors are not an exhaustive enumeration. The ultimate test of fair use, therefore, is whether the copyright laws goal of promoting the progress of science and useful art would be better served by allowing the use than by preventing it -the more critical inquiry under the first factor and in fair use analysis generally is whether the allegedly infringing work merely supersedes the original work or instead adds something new, with a durther purpose or different character, altering the first with new meaning or message, in other words whether and to what extent the new work is transformative. If the secondary use adds value to the original if copyrightable expression in the original work is used as raw material, transformed in the creation of new info, new aethetics, new insights and understandings- this is the very type of activiy that the fair use doctrine intends to protect for the enrichment of society -the second statutory factor, the nature of the copyrighted work, calls for recognition that some works are closer to the core of intended copyrighted protection than others, with the consequence that fair use is more difficult to establish when the former works are copied -the third factor- the amount and substantiality of the portion of the copyrighted work used- must be examined in context. The inquiry must focus upon whether the extent of copying is consistent with or more than necessary to further the purpose and character of the use A parody must be able to conjure up at least enough of the original work to make the object of its critical wit recongizable and then determined whether the amount used of the original work was no more than necessary to satisfy the purpose of parody -in considering the fourth factor, our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps or substitutes for the market of the original work. The more transformative the secondary use, the less likelihood that the secondary use substitutes for the original

Copyright 2

•1) Original works •2) Fixed in tangible medium • Life of author+70 years for unpublished worked For published different rules, generally 95 years; published works before 1927 are in public domain Kept on getting kicked down the road led by Gershwin family trust, grandchildren of Oscar Hammerstein, Disney Mickey Mouse enters public domain January 1, 2024 (original Mickey, still copyright on popular version); still protected by trademark

Trade secrets

•A trade secret owner has a right ot prevent or be compensated for, misappropriation of the trade secret -There are two ways to misappropriate a trade secret (1) acquire the protected info through improper means or (2) disclose the protected info where disclosure breaches a duty to keep the info confidential (or where the info was acquired through improper means) -To receive trade secret protection, the following must occur: (2) the info must have independent economic value, which as a reuslt of not being generally known or readily ascertainable, gives its holder a competitive advantage; and (2) reasonable, affirmative efforts are made to preserve the secrecy of the info

Copyrights

•By and large, copyright law is statutory law -As in patent law, copyright law serves the goal stated in the constitution by creating incentives for creativity by granting the reward of a limited monopoly •The copyright holder has the right to prevent others from (1) reproducing the work; (2) CREATING DERIVATIVE WORKS; (3) distributing copies of the work to the public; (4) performing the work publicly; (5) displaying the work publicly; and (6) performing the work by digital audio transmission -Of course, copyright holders may and frequently do sell others licenses to use their works in particular ways -A copyright holder may also assign her copyright to another •Federal law imposes three requirements for copyright protection: (1) originality; (2) work of authorship; and (3) fixation •Originality means that (a) the work must be an independent creation of the author and (b) must demonstrate at least some minimal degree of creativity -Work of authorship- the federal statute identifies 8 types of such works: literary works; musical works; dramatic works; pantomimes and choreographic works; pictural, graphic, and sculptural works; motion pictures and other audio-visual works; sound recordings; architectural works -The term literary works is interpreted to include computer programs -First, it includes any idea , procedure, process, system, method of operation, concept, principle, or discovery -Copyright law protects expression, not ideas -It protects the form or mode by which ideas are expressed rather than the ideas themselves -Second, strictly functional works, such as systems or procedures, are protected by patent law, not copyright -Fixation means that the work must be fixed in some kind of tangible medium

castle rock notes

•Castle rock illustrates two essential copyright doctrines: the substantial similarity test for infringement and the fair use defense •The first sale doctrine allows someone who lawfully owns a physical copy of a copyrighted work to transfer ownership (or possession) of that copy without violating the copyright owners right of distribution -The intellectual property holders rights over a particular item end when it gives upo its personal property rights in the item. -because of this, it depends heavily on the law of personal property to define who is an owner of that item

defenses patent

•Challenges to validity Subject matter is ineligible (Diamond/Mayo/Alice). Applicant failed to make adequate disclosures in written description/enablement. Invention lacks novelty Invention is obvious. Invention lacks utility (low bar). •Challenges to infringement No literal infringement. Prosecution history estoppel precludes applying doctrine of equivalents (DOE) Knowledge is lacking for indirect infringement. Prosecution history estoppel precludes DOE.

federal copyright law

•Federal copyright law protects original works of authorship, like novels, biographies, songs, screenplays, etc -Copyright law has a very low threshold for protection: a work must merely display a modicum of creativity and have been written down (fixed in a tangible medium of expression) -You do not need to file for a copyright with the gov in order to receive protection -The copyright so obtained is valid during its authors lifetime, and for the next 70 years after that -It gives copyright owners the exclusive right to reproduce their works, to make adaptions of them, to distribute them to the public, and to perform or display then publicly- but this right only applies against people who copy from the owner -Someone who independently and coincidentally comes up with similar expresion is an author in her own right, not an infringer

Trademarks

•Generally speaking, word, symbols, jingles, and other sounds can be trademarked -The supreme court has even held that colors can be trademarked under specific circumstances -As a rule, three requirements must be met for trademark protection: (1) distinctiveness; (2) non-functionality; and (3) first use in trade •Distinctiveness- this means that the mark must distinguish the good or service of the one person from those of another -The lanham act categorizes marks according to varying degrees of distinctiveness -Fanciful and arbitrary marks typically get the strongest protection -Suggestive marks are also considered inherently distinctive -They evoke the nature of the goods subtly but still require the consumer to use imagination and perception to determine the nature of the product being sold -Descriptive marks describe a purpose or characteristic of the product -Descriptive marks can still be protected if the product has acquired secondary meaning in the relevant marketplace -If an aspect of good is exclusively functional, it cannot be protected by trademark law -a product feature is functional if it is essential to the use of purpose of the article or it affects the cost quality of the article -First use in trade- an exclusive right to use a mark requires first use, not just first adoption, of the mark in a particular geographic market. Moreover, under the lanham act, the use must be in commerce, which has a narrower scope than trade •A generic term is synonymous with a product itself, rather than with a particualr maker of that product -In order to promote competition in the marketplace, the lanham act treats generic terms as part of the public domain. -Policing the boundaries of generic verus non-generic marks is an important task for the patent and trademark office, and ultimately, the courts •Descriptive trademark need secondary meaning- "rasin nut bran" is a type of food but also a brand name

Intellectual property

•Intellectual property: rights governing the ownership of info -A defendant who uses that info in that way without the rightsholder permission is said to be an infringer •Different bodies of intellectual property law restricts different kinds of uses -Creation can provide intellectual property rights Federal patent law protects any new and useful process, machine, manufacture, or composition of matter -Examples include mechanical devices like tractor plows and can openers -To obtain a patent, an inventor must go through a detailed and expensive application process, which involves convincing the US patent and trademark office that her invention is genuinely new ("novel"), that it represents a sufficient advance on previous inventions (that it be nonobvious) and that it has some practical use in the world, however slight (utility) -She must also disclose to the public, in detail, how her invention works and how best to use it (satisfying instructions regarding the written description of the patent and disclosing how it works) -Once the USPTO issues a patent, it gives the owner the exclusive right for 20 years (from the day she filed her application with the USPTO) to make, use, offer to sell, or sell the invention (this means that anyone is free to copy or to study the patent on a new kind of steering wheel, but they cannot make, use, or sell steering weels as described in the patent) Owner of patent doesn't actually have to use patent

Bundle of Rights

•Possession •Control •Right to Exclude •Enjoyment •Disposition -Patent- invention (product or process) •Directed to new & useful inventions •Right to exclude others from making, using, selling, or importing an invention. •PTO must issue patent (after application). •Exists to promote advancement in technology. -copyright-expression •Exclusive right in expression to copy; prepare derivative works; publicly perform or display; publicly distribute. •No registration is necessary. •Must original expression in a tangible medium. •Exists to promote creative expression and increase public knowledge. -trademark- marks designating source •Exclusive right to use mark in commerce without consumer confusion. •Right to prevent dilution (if famous mark). •Exists to promote efficiency in marketplace and incentivize for quality goods -trade secret- Secretly-held commercial information •Rights to valuable information that is held secret. •Must have independent economic value. •Must be subject to efforts to keep secret. •Protects against persons who acquire info through improper means or improperly disclosure

rights of publicity

•State created rights of publicity protect against the commercial use of ones name, picture, voice or other indicia of identity without permission -Some states require that ones identity have commercial value to bring a right of publicity suit, others do not -The federal trademark law, the lanham act, provides a closely related cause of action for false claims about endorsement: quoting a person as saying "I always shop at acme hardware" is actionable if the person didn't say it and you don't have their permission to quote them as saying it •Trade secret law- to be protected as a trade secret, info must be valuable because it is secret -Canonical exampls of trrade secrets include the recipe for coke -Because obtaining a patent involves extensive disclosure, it is impossible to have a patent and a trade secret on exactly the same info -In general, a defendant is liable only for obtaining a trade secret through improper means -Breacg of a duty of confidentiality is far and away the most common such means -Industrial espionage, such as breaking into labs or hacking into computers, is also improper means -Note that trade secret law, like copuright law, protects only against infringers who obtain the secret info, directly or indirectly, from the owner: independent rediscovery of the same info (including legally obtained copies of the owners goods containing or made using with the trade secret) and studies it to understand how the secret works •The federal gov also issues design patents on any new, original and ornamental design for an article of manufacture and plant patents for any distinct and new variety of plant

trademark infringement

•Trademark law protects the goodwill in consumers minds associating the phrase with their particular goods -So trademark rights flow from use •The basic species of trademark infringement is confusion about the source: the consumer buys the defendants product rather than the plaintiffs in the mistaken belief that it is the plaintiffs product -This form of confusion, known as passing off, is actionable even when the defendant scrupulously avoids using the plaintiffs trademark but still manages to trick consumers about what they are buying -Both are forms of unfair competition: stealing customers from a competitor with dishonest or dangerous business practices •Another species of trademark liability is dilution , in which the defendant allegedly harms the trademark itself -Consumers will have to think harder- incur as it were a higher imagination cost- to recognize the name as the name of the store. So blurring is one form of dilution -Tarnishment is a second form of dilution -Analytically it is a subset of blurring, since it reduces the distinctness of the trademark as a signifier of the trademarked product or service •Trademark law has defenses for people who use trademarks in basically truthful ways -Comparative advertising, for ex, allows a defendant to use the plaintiffs trademark rather than circumlocutions like th eother leading brand -And nominative fair use lets defendants describe their products in terms of the plaintiffs -It also affects trademark laws exhaustion doctrine, because secondhand items bearing a trademark may well be meaningfully different thatn new items precisely because they are used •Functional material cannot be protected as a trademark -Competitors need to be free to coy any feature of the design that is essnetial to the use or purpose of the article or that affects the cost or quality of the article -A similar doctrine excludes functional material from copyright protection •The provision of the lanham act prohibiting registration of marks that may disparage persons, institutions, beliefs, or national symbols violated the first amendment

trademark law

•Trademark law, which is a hybrid of state and federal rights -A trademark is a word or symbol like nike or the swoosh logo that distinguishes goods or services in the marketplace -One gains trademark rights by using a mark on goods so that consumers associate the mark with a particulat source -These associations are called goodwill and it is common to say that what a trademark ovwner owns is the goodwill (even though it exists only in consumers minds) -These rights exist under state common law as soon as the goodwill exists; trademark owners can also register their marks with the USPTO, which gives nationwide and no tjust lcoal rights -Trademark law gives a trademark owner the right to prevent uses of th emark that cause consumer confusion about the source of goods: a consumer who sees non-nike shoes falsely labeled nike and who mistakenly believes they come from nike has been confused about the origin of the goods, and nike can sue the company slapping its trademark on ersatz shoes

Dance Moves

•Unprotectable dances, regardless of their level of creativity, are simple routines, such as: End zone celebratory dance, series of yoga positions, social dance steps, such as breakdances, line dances, or ballroom dances generally intended to be performed by others for their own enjoyment •Most TikTok dances likely fall into the latter unprotectable category. However, where there is a sufficient combination of body movement, spatial movements, and coordination with musical accompaniment, it is possible that a social media dance may be protectable. •Protection is more likely if the performance: is by a skilled dancer, Is for the entertainment of others, and not for others to mimic for their own enjoyment, Involves a story or theme •It is copyright infringement and a basis for a legal claim if someone without legal authorization: publicly performs the work, reproduces the work, distributes the work, adapts the work •If a dance is deemed copyrightable, then copyright comes at the time of recording and lasts throughout the author's lifetime plus 70 years. •Similar to writing, copyright protection begins when a performance is fixed in a tangible medium of expression" like a video or dance script. ATikTokvideo could sufficeas long asthe dance falls into a protectable category. Registration is not required for protection, but registering early grants additional protections, including the right to file a lawsuit

copyright infringement

•Until feist, several decisions had applied the sweat of the brow doctrine -Under that doctrine, an author gains copyright protection simply on the basis of effort and expense; no originality is required -Feist rejects that doctrine -The test for originality is creativity •Infringement- the copyright holder must satisfy three requirements to prevail in an infringement action: (1) he holds a valid copyright in the work; (2) defendant copied the work; and (3) the copying was an improper appropropriation- requires that the copyright holder show that the defendant copied so much of the original material that the two works are substantially similar •Fair use- the most important defense in a copyright infringement action is fair use -Fair use authorizes users of copyrighted material to exploit the work for some purposes without needing to obtain the permission of the copyright holder -Classic fair uses include quoting portions of a manuscript in a book review, invoking parts of a well-known song in a musical parody -When considering a fair use defnese, the cours consider (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work •Copyright duration- the patent monopoly generally runs for 20 years from the date on which the patent application is filed -The copyright monopoly is much longer-lived -Works created by living authors are not protected for the auhtors lifetime and the first 70 years after her death