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ACCT 215 > Chapter 6 review > Flashcards

Chapter 6 review Flashcards

Intellectual Property Law

1
Q

products of a person’s creative spirit. Intangible in nature.

  • Patents
  • Copyrights
  • Trademarks
  • Trade secrets
A

Intellectual Property (IP)

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2
Q

the legal right to exclude all others from making, using, selling, or importing the invention during the term of the patent
- Invention may be an apparatus or method as defined by the patent claims
- Negative Right: the right to exclude others
- Federal law most important source (Art. I, § 8, clause 8)
International law is relevant
State law generally not relevant

A

Patents

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3
Q

The U.S. Patent & Trademark Office examines and issues patents (under Dept. of Commerce)
Does not mean patent will be found valid in court
Does not mean USPTO will monitor who uses the patent

A

USPTO

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4
Q

Three types

  1. Utility—covers the way something works, how the pieces/parts interact (20 years from filing date)
  2. Plant—covers strains of asexually reproducing plants (20 years from filing)
  3. Design—covers ornamental features of a product (14 years from issue date)
A

Patents

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5
Q

Requirements to receive a patent (the invention as defined by the claims must be)

A

Novel
Useful
Non-obvious
Directed to statutory subject matter

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6
Q

No single teaching from the prior art can disclose each and every element of the invention
Prior art: existing information or concepts which prove the invention is not novel or new

A

Novelty

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7
Q

Very low bar; nearly any commercial utility

A

Useful

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8
Q

No combination of prior art teachings that would be obvious to combine to disclose each and every element of the invention

A

Non- Obvious

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9
Q

Statutory Subject Matter Does NOT include

A

Natural phenomena
Laws of nature
Abstract ideas

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10
Q

International Protection
No such thing as an “International Patent”
PCT application is an international application (except for a several countries)
PCT application is just a place holder and requires entering the national phase in individual countries
PCT application administered World Intellectual Property Organization (WIPO)

A
  1. What is protected? What is not?
  2. What law protects? (Federal)
  3. What causes of action exist?
  4. What defenses exist? (license) invalid patent
  5. What special vocab concepts exist?

STUDT FOR EXAM

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11
Q

Infringement requires unauthorized making, using, selling, or importing of invention
Remedies include an injunction and a money award
Common defenses
Patent is invalid
Accused device does not meet each an every element of at least one patent claim
Laches (statute of limitations is 6 years)
First Sale Doctrine: once sold, the buyer can use the patented product in any manner they choose

A

Patents Infringement

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12
Q

exclusive right to exploit certain creative works
Federal law is most important (Art. I, § 8, clause 8 of Constitution)
Creative works include literary, musical, dramatic, pictorial, sculpture, sound records, movies, architecture, software
Exclusive rights are a bundle (copy, publicly display or perform, create derivative works)

A

Copyright
state law does exist

QUESTION ON EXAM
What exclusive rights does a copyright holder possess
a. right to make derivative works

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13
Q

COPYRIGHT
Must be an original work fixed to a tangible medium of expression
Originality bar is low
A sketch on a napkin would be enough
Often authors affix the © to denote they are the original authors
Term can vary
General rule: the life of author plus 70 years
Work for hire: 120 years after creation or 95 years after publication, whichever is shorter.

A

*Exam 2 *

No questions on years or months on the exam.

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14
Q

Copyright protection does not extend
To subject matter of patents
Parody
To facts (example: subject matter of news story)
To ideas, concepts of principles
Example: the idea of world peace cannot be copyrighted. Neither can (2+2=4).

A

Limitations on Copyrights.
Parody:
Can be righted but a copyright holder cannot sue the creator of a parody of their work.

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15
Q

if an idea cannot be separated from its expression then no copyright protection

A

Idea-expression dichotomy

ex. Be happy

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16
Q

Copyright
Infringement
Plaintiff must show ownership of copyright and unauthorized copying
For willful infringement and enhanced damages plaintiff must show knowledge or reckless disregard by defendant
Remedies available for successful plaintiffs include injunctions and monetary awards.

A

willful infringement = intentional

17
Q

defendant “induces, causes, or materially contributes to infringement (knowledge required).

A

Contributory infringement
Contributory: someone else doing it.
(knowledge required)

18
Q

defendant receives a benefit from infringement and has the right and ability to control the infringer’s conduct (no knowledge requirement)

A

Vicarious Infringement

no knowledge required

19
Q

Fair use—exception to infringement that considers four factors

  1. Nature of the use
  2. Nature of the copyrighted work
  3. Amount and character of portion used
  4. Effect of the use on economic value of work.
A
  1. Favorable, not for profit
  2. Unfavorable, for profit
  3. Unfavorable, entire article
  4. will other buy? U or F?
20
Q

Patent protection might be available for the function or process of the software
Copyright protection might be available for source code and object code
Also protects menu structure as well as look and feel of the software
Subject to a first sale doctrine defense
Note: licensed copies might not be legally transferable under contract law

A

Software and Copyrights
First sale doctrine: Can resell or modify if purchased property right.
ex. a TV

21
Q

: a name, logo, or other distinguishing characteristic associated with a product (or service if service mark)
Almost always a mix of federal and state law governing trademarks, but federal law is most prominent
No constitutional provision (purpose is to protect consumers, not promote science & art)
Ownership of a valid trademark allows the owner to exclude others from using a confusingly similar mark

A

Trademark

22
Q

Trademark: protects marks associated with products
Service mark: protects marks associated with services
Collective mark: protects marks associated with a collective group such as the veterans of foreign wars (“VFW”)
Certification mark: protects marks used to certify goods. Good Housekeeping Seal of Approval is a good example.

A

types of marks

23
Q

Madrid Protocol allows trademark owners to register their marks at the international level.

A

International Law

test question

24
Q

Straight infringement: occurs when another party is using a confusingly similar trademark.

Dilution: is a cause of action available for owners of famous marks and can have dilution by tarnishing or dilution by blurring.
Remedies include injunctions and monetary damages.

A

Straight infringement: Making NIKE sweat shirts illegally.

1-2 questions on Exam 2

25
Q

Trademark Infringement Cont.
Courts use a multi-factor test when determining if there is a likelihood of confusion by consumers
-Similarity of the two marks
-Similarity of the products
-Strength of the mark
-Similarity between channels of trade
-Sophistication of ordinary consumer of product

A

Multiple choice question possible on Exam 2

26
Q

Ex.
Assume Delta Airlines sues Delta Faucet Company for use of “Delta”
The products are probably different enough to withstand an infringement case by Delta Airlines
Assume Mac starts a restaurant where he sells burgers. He calls one the “Big Mac.”
McDonalds Corporation would easily prevail in a lawsuit for infringement against Mac.

A

(Delta) Dilution
Customers aren’t confused because they are different.

McDonalds: Infringement

27
Q

allows parties to sue when products are not similar even if confusion is unlikely
Example: A group of doctors start a dentistry office called “McDentals.” McDonalds can sue the dentists for trademark dilution and may have a good case.

A

Trademark Dilution

  • Not as valuable
    _ Customers aren’t confused but it just doesn’t work
28
Q

Trade dress: protects aesthetics of a product or packaging if consumers identify the trade dress with a particular owner.
Example: Buffalo Wild Wings restaurants have a unique décor in their restaurants complete with a layout and a set color scheme
Trade name: a trade name is the name a business uses to identify itself. It can be trademarked.

A

Unique Trademarks

given by state

29
Q

knowledge with economic value that is not generally known or easily ascertainable (reverse engineered)
Examples include recipes, formulas, processes
Can last in perpetuity (Coca-Cola recipe)
Subject matter may overlap with patents
Often protected by contract law

A

Trade Secret

ACCT 215 (3 decks)

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