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property > CHAPTER 4: IP > Flashcards

CHAPTER 4: IP Flashcards

1
Q

Copyright

What are the elements of the 1976 Copyright Act?

A

(1) Originality
(2) Work of authorship
(3) Fixation

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2
Q

Copyright

Define (1) originality

A

Independently created with a minimal degree of creativity

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3
Q

Copyright

What are the categories of (2) authorship?

A
  1. Literary works
  2. Musical works
  3. Dramatic works
  4. Pantomimes and choreography
  5. Pictorial, graphic, and sculpture
  6. Audiovisual
  7. Sound recordings
  8. Architectural works*
  9. Analogous works

  • Required to join internaitonal agreement
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4
Q

Copyright

Define (3) fixation

A

Must be written, recorded . . . “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration”

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5
Q

Copyright

Rule to establish copyright from Feist Pub. v. Rural Tele. Service

A

While the standard for originality is low, facts are not copyrightable and the arrangement of the facts must meet a minimal degree creativity

author chooses which facts to include and in what order to present them

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6
Q

Copyright

Rule to establish infringement from Feist Pub. v. Rural Tele. Service

A

(1) Ownership of a valid copyright and (2) copying of the constituent elements of the work that are original

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7
Q

Copyright

Describe the “idea-expression” dichotomy

A

Copyright law protects the manner in which an idea is expressed, not the idea itself

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8
Q

Fair Use

What are the factors that are considered in “fair use”

A

(1) The purpose and the character of the use (commercial? educational? transformative?)
(2) The nature of the copyrighted works
(3) The amount and substantiality of the portion of the work as whole
(4) The effect on the potential market or value of the copyrighted work

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9
Q

Fair Use

Reasoning from Harper & Row v. Nation Enterprises

A

Against Nation: Commercial use, bad faith, unfinished work, took the “heart of the book,” Harper lost money from Time contract
For Nation: It was news, a factual work, only used 300 words

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10
Q

Fair Use

How does parody work?

A

The more transformative the work the better - parody is seen like a scathing review and does not produce harm under the Copyright Act

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11
Q

Patents

What rights come with a patent?

A

The right to exclude for 20 years

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12
Q

Patents

What are the requirements for a patent?

A

(1) Patentable subject matter
(2) Utility
(3) Novelty
(4) Nonobviousness
(5) Enablement

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13
Q

Patents

What constitutes (1) patentable subject matter?

A

(1) Process
(2) Machine
(3) Manufacture
(4) Composition

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14
Q

Patents

How is (2) utility defined?

A

Must be a useful invention (rarely a problem)

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15
Q

Patents

How is (3) novelty defined?

A

PTO will examine prior patents to determine if it is novel

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16
Q

Patents

How is (4) nonobviousness defined?

A

Would the invention have been obvious to a person having ordinary skill?

17
Q

Patents

How is (5) enablement defined?

A

Must describe the invention in such detail as to enable any person skilled in that area to make and use the same

18
Q

Patents

Rule about patent of living matter from Diamond v. Chakrabarty

A

(1) Manufacture is production from raw materials giving the materials new forms, qualities, properties, or combinations
(2) Compostion means two or more substances whether they be chemical union or mechanical mixture

19
Q

Patents

When is a patent not novel?

A
  1. It was patented by someone else
  2. It is described in a publication
  3. It is in public use
  4. It is for sale
  5. It was otherwise available to the public before the application was filed
20
Q

Patents

How does the court determine nonobviousness?

A
  1. The scope and content of prior inventions
  2. The differences between prior inventions and the claims at issue
  3. The level of ordinary skill
  4. “Secondary” considerations
21
Q

Patents - Infringement

Rule of infringment from Larami Corp. v. Amron

A

A patent holder can establish infringment by:
(1) Showing that it is literally infringed upon or
(2) The invention is infringed upon under the doctrine of equivalents

22
Q

Patents - Infringement

Define the doctrine of equivalents

A

Must perform substantially the same overall function or work in substantially the same way, to obtain substantially the same overall result

23
Q

Trademark

What are the elements of a trademark?

A

(1) Distinctiveness
(2) Non-functionality
(3) First use in trade

24
Q

Trademark

Define (1) distinctiveness

A

Mark must distinguish the goods or services of one entity from those offered by another

25
Q

Trademark

Define (2) non-functionality

A

The mark cannot be vital to the use or purpose of the product, or affect the cost or quality of the product

26
Q

Trademark

Define (3) first use in trade

A

Common law: The mark belongs to the first person to use it in a particular area
Lanham Act: belongs to first registrant

27
Q

Trademark

How to show infringement

A

(1) Hold a valid mark
(2) Copy or imitation has been used in commerce
(3) Use is likely to cause confusion or deceive

28
Q

Trade Secrets

What are the key differences from patent law?

A
  1. Covers more than patent law (less rigorous requirements)
  2. Does not require government approval
  3. Kept secret
  4. Could potentially last forever (eg Coca-Cola)
29
Q

Trade Secrets

What are the elements?

A

(1) Information that has
(2) Economic value from
(3) Not being readily ascertainable by others
(4) Which the owner makes reasonable efforts to keep secret

30
Q

Trade Secrets

What are the elements to show misappropriation?

A

(1) Party owns the trade secret
(2) The defendant
(a) wrongfully acquired,
(b) disclosed, or
(c) used the secret

31
Q

Trade Secrets

Rule regarding non-compete from PepsiCo v. Redmond

A

Misappropriation may be shown by demonstrating that new employment would lead the party to rely on the protected trade secrets

Some courts reject the principle of inevitable disclosure

property (11 decks)

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