Intellectual Property. “One of the greatest pains to human nature is the pain of a new idea.”...
-
Upload
blaze-mitchell -
Category
Documents
-
view
213 -
download
0
Transcript of Intellectual Property. “One of the greatest pains to human nature is the pain of a new idea.”...
Intellectual Property
“One of the greatest pains to human nature is the pain of a new idea.”
Walter Bagehot,English economist and journalist
Intellectual property has little economic value unless others use it
It is nonexclusive◦ Many don’t see is a problem using it for free
Role is to balance the rights of those:◦ Who create intellectual property ◦ Who would enjoy it
A grant by the government permitting the inventor exclusive use of an invention for a specific period
Types:◦ Utility patents◦ Design patents◦ Plant patents
Available to those who invent or significantly improve a:◦ Mechanical invention◦ Electrical invention◦ Chemical invention◦ Process◦ Machine◦ Composition of matter
A patent is not available solely for an idea, but only for its tangible application◦ Business method patents – Involve a particular
way of doing business that often includes data processing and mathematical calculations
◦ Patents on living organisms
Protects the appearance, not the function of an item◦ Last 14 years from the date of issuance
Not 20 years from the fate of filing
Anyone who creates a new type of plant can patent it◦ Provided the inventor is able to reproduce it
asexually—through grafting
To receive a patent, the new invention must be:◦ Novel◦ Nonobvious◦ Useful
Priority between two inventors◦ The person who invents and puts the invention
into practice has priority over the first filer Prior sale
◦ An inventor must apply for a patent within one year of selling the product commercially anywhere in the world
Provisional patent application:◦ A shorter, simpler filing permitted to inventors by
the Patent and Trademark Office (PTO)
Duration of the patent Patents are valid for 20 years from the date of
filing the application Design patents are valid for 14 years from the date
of issuance Infringement
A patent holder has exclusive rights to use the invention during the terms of the patent
Patent troll: Someone who buys a portfolio of patents for the
purpose of making patent infringement claims
The Paris Convention for the Protection of Industrial Property (Paris Convention)◦ Requires each member country to grant to
citizens of other member countries the same rights under patent law as its own citizens enjoy
The Patent Law Treaty◦ Requires that countries use the same standards
for the form and content of patent applications Patent Cooperation Treaty
◦ A step toward providing more coordinated patent review across many countries
Patent Prosecution Highway◦ Under which the United States PTO has bilateral
agreements with 16 other patent offices Any country that joins the World Trade
Organization must agree to TRIPS (trade-related aspects of intellectual property rights)
The holder of a copyright owns the particular tangible expression of an idea, but not the underlying idea or method of operation
The Copyright Act protects:◦ Literature, music, drama, choreography, pictures,
sculpture, movies, recordings, architectural works, computer databases, and computer programs
A work is automatically copyrighted once it is in tangible form◦ Registration with the Copyright Office of the
Library of Congress is necessary only if the holder brings suit to enforce the copyright
◦ Authors routinely place the copyright symbol (©) on their works Such a precaution is not necessary in the United
States
Currently, copyrights are valid until 70 years after the death of the work’s only or last living author
In the case of works owned by a corporation, the copyright lasts:◦ 95 years from publication or ◦ 120 years from creation, whichever is shorter
To prove a violation, the plaintiff must present evidence that the work was original and that either: ◦ The infringer actually copied the work, or ◦ That the infringer had access to the original and
the two works are substantially similar A court may:
◦ Prohibit the infringer from further violations◦ Order destruction of the infringing material, and◦ Require the infringer to pay damages, profits
earned, and attorney’s fees
Permits limited use of copyrighted material without permission of the author for purposes such as criticism, comment, news reporting, scholarship, or research
Parody – A fair use of copyrighted material so long as the use of original is not excessive
Modern technology is very easy to copy◦ A major challenge for legal institutions in
regulating copyrights The No Electronic Theft Act: Intended to
deter the downloading of copyrighted material
The Family Entertainment and Copyright Act: It is a criminal offence to use a camcorder to film a movie in a theater◦ Establishes criminal penalties for willful copyright
infringement
Digital Millennium Copyright Act provides that:◦ It is illegal to delete copyright information◦ It is illegal to circumvent encryption or scrambling
devices that protect copyrighted works◦ It is illegal to distribute tools and technologies
used to circumvent encryption devices◦ Online service providers are not liable for posting
copyrighted material so long as they are unaware that the material is illegal They should remove it promptly after receiving
notice that it violates copyright law
The Berne Convention:◦ Requires member countries to provide automatic
copyright protection to any works created in another member country
Any combination of words and symbols that a business uses to distinguish products or services and distinguish them from others
Types of marks◦ Trademarks: Affixed to goods in interstate
commerce◦ Service marks: Identifies services, not products◦ Certification marks: Words or symbols used to
attest that products meet certain standards◦ Collective marks: Used to identify members of
an organization
First person to use a mark in trade owns it Registration with federal government is not
necessary◦ Owner of the mark may register it on the Lanham
Act Principal Register
Advantages:◦ Makes trademark protection valid nationally◦ Notifies public of its use◦ Five years after use, a mark incontestable
because most challenges are barred ◦ Damages available under the Lanham Act are
higher than under common law◦ Generally gives first right to use the trademark as
an Internet domain name
To be valid, a trademark must be distinctive Categories:
◦ Fanciful marks: Made-up words such as Kodak◦ Arbitrary marks: Use existing words that do not
describe the product◦ Suggestive marks: Indirectly describe the
product’s function◦ Trade dress: The image and overall appearance
of a business or product
To be valid, a trademark cannot be:◦ Similar to an existing mark◦ A generic trademark◦ A descriptive mark◦ A person’s name alone ◦ Deceptive◦ Scandalous or immoral
To win a infringement suit, the trademark owner must show that:◦ Defendant’s trademark is likely to deceive
customers about who made the product or provided the service
The rightful owner is entitled to:◦ An injunction prohibiting further violations◦ Destruction of the infringing material◦ Up to three times actual damages◦ Any profits the infringer earned on the product◦ Attorney’s fees
Prevents others from using a trademark in a way that:◦ Dilutes its value
Even though consumers are not confused about the origin of the product
◦ Tarnishes it by association with unwholesome goods or services
Difficult to find a distinctive name for a new business
Cybersquatting◦ Anticybersquatting Consumer Protection Act
(ACPA): Permits both trademark owners and famous people to sue anyone who registers their name as a domain name in “bad faith”
ICANN◦ Internet Corporation for Assigned Names and
Numbers - A private, nonprofit, international organization that handles management of the Internet, including the allocation of names
Theft of domain name – Accused can convicted under the Computer Fraud and Abuse Act
Trademarking a domain name – The PTO will issue such a trademark only for services offered via the Internet
Under the Paris Convention◦ If someone registers a trademark in one country,
then he has a grace period of six months, during which he can file in any other country using the same original filing date
Under the Madrid Agreement◦ Any trademark registered with the international
registry is valid in all signatory countries The Trademark Law Treaty
◦ Simplifies and harmonizes the process of applying for trademarks around the world
A formula, device, process, method, or compilation of information that gives the owner an advantage over competitors
To determine if information is a trade secret, courts consider:◦ How difficult was the information to obtain?
Was it readily available from other sources?◦ Does the information create an important
economic advantage?◦ Does the company make a reasonable effort to
protect it?
Anyone who misappropriates a trade secret is liable to its owner for:◦ Actual damages◦ Unjust enrichment◦ A reasonable royalty
The Economic Espionage Act of 1996◦ Makes it a criminal offence to steal (or attempt to
steal) trade secrets for the benefit of someone other than the owner, including for the benefit of any foreign government
““For many individuals and For many individuals and companies, intellectual property is companies, intellectual property is the most valuable asset they will the most valuable asset they will ever own. As its economic value ever own. As its economic value increases, so does the need to increases, so does the need to
understand the rules of intellectual understand the rules of intellectual property law.”property law.”