CHAPTER 4: IP Flashcards
Copyright
What are the elements of the 1976 Copyright Act?
(1) Originality
(2) Work of authorship
(3) Fixation
Copyright
Define (1) originality
Independently created with a minimal degree of creativity
Copyright
What are the categories of (2) authorship?
- Literary works
- Musical works
- Dramatic works
- Pantomimes and choreography
- Pictorial, graphic, and sculpture
- Audiovisual
- Sound recordings
- Architectural works*
- Analogous works
- Required to join internaitonal agreement
Copyright
Define (3) fixation
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”
Copyright
Rule to establish copyright from Feist Pub. v. Rural Tele. Service
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
Copyright
Rule to establish infringement from Feist Pub. v. Rural Tele. Service
(1) Ownership of a valid copyright and (2) copying of the constituent elements of the work that are original
Copyright
Describe the “idea-expression” dichotomy
Copyright law protects the manner in which an idea is expressed, not the idea itself
Fair Use
What are the factors that are considered in “fair use”
(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
Fair Use
Reasoning from Harper & Row v. Nation Enterprises
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
Fair Use
How does parody work?
The more transformative the work the better - parody is seen like a scathing review and does not produce harm under the Copyright Act
Patents
What rights come with a patent?
The right to exclude for 20 years
Patents
What are the requirements for a patent?
(1) Patentable subject matter
(2) Utility
(3) Novelty
(4) Nonobviousness
(5) Enablement
Patents
What constitutes (1) patentable subject matter?
(1) Process
(2) Machine
(3) Manufacture
(4) Composition
Patents
How is (2) utility defined?
Must be a useful invention (rarely a problem)
Patents
How is (3) novelty defined?
PTO will examine prior patents to determine if it is novel
Patents
How is (4) nonobviousness defined?
Would the invention have been obvious to a person having ordinary skill?
Patents
How is (5) enablement defined?
Must describe the invention in such detail as to enable any person skilled in that area to make and use the same
Patents
Rule about patent of living matter from Diamond v. Chakrabarty
(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
Patents
When is a patent not novel?
- It was patented by someone else
- It is described in a publication
- It is in public use
- It is for sale
- It was otherwise available to the public before the application was filed
Patents
How does the court determine nonobviousness?
- The scope and content of prior inventions
- The differences between prior inventions and the claims at issue
- The level of ordinary skill
- “Secondary” considerations
Patents - Infringement
Rule of infringment from Larami Corp. v. Amron
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
Patents - Infringement
Define the doctrine of equivalents
Must perform substantially the same overall function or work in substantially the same way, to obtain substantially the same overall result
Trademark
What are the elements of a trademark?
(1) Distinctiveness
(2) Non-functionality
(3) First use in trade
Trademark
Define (1) distinctiveness
Mark must distinguish the goods or services of one entity from those offered by another
Trademark
Define (2) non-functionality
The mark cannot be vital to the use or purpose of the product, or affect the cost or quality of the product
Trademark
Define (3) first use in trade
Common law: The mark belongs to the first person to use it in a particular area
Lanham Act: belongs to first registrant
Trademark
How to show infringement
(1) Hold a valid mark
(2) Copy or imitation has been used in commerce
(3) Use is likely to cause confusion or deceive
Trade Secrets
What are the key differences from patent law?
- Covers more than patent law (less rigorous requirements)
- Does not require government approval
- Kept secret
- Could potentially last forever (eg Coca-Cola)
Trade Secrets
What are the elements?
(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
Trade Secrets
What are the elements to show misappropriation?
(1) Party owns the trade secret
(2) The defendant
(a) wrongfully acquired,
(b) disclosed, or
(c) used the secret
Trade Secrets
Rule regarding non-compete from PepsiCo v. Redmond
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
