Chapter 8: Intellectual Property and Unfair Competition

Question 1

What are the three types of intellectual property?

Answer 1

1. Patent
2. Trademark
3. Copyright

Question 2

What is a patent?

Answer 2

Grant from federal government to an inventor in which inventor obtains exclusive right to make, use, and sell his invention for a period of 20 yrs (14 yrs for designs)

Question 3

What does a patent protect?

Answer 3

1. A process
2. A machine
3. A product or manufacture
4. A composition of matter (such as a new chemical compound)
5. An improvement of any of the above
6. An ornamental design for a product
7. A plant produced by asexual reproduction
8. Certain business methods

Question 4

An invention is not patentable if it:

Answer 4

1. Lacks novelty
2. Is obvious
3. Has no utility

Question 5

What is patent infringement?

Answer 5

Infringement occurs when defendant makes, uses, or sells patented invention without patentee’s authorization

• Remedy: monetary damages

Question 6

What is a copyright?

Answer 6

Intangible right granted by statute to the author or creator of certain tangible literary or artistic productions

• Can’t copyright an “idea”

Applicable law

• Copyright Protection Act and Copyright Term Extension Act

Protection automatic; registration not required, though recommended

Works created after 1778 are given protection for life of author + 70 yrs

Question 7

What is a work-for-hire?

Answer 7

A work-for-hire exists when

• An employee in the course of her regular employment duties, creates a copyrightable work; or
• An individual or corporation and an independent contractor (nonemployee) enter into a written “hire” agreement under which the non-employee creates a copyrightable work for the individual or corporation

Question 8

What is proof of infringement?

Answer 8

Infringement generally requires proof that:

• Defendant had access to protected work
• Defendant engaged in enough copying that resemblance between allegely infringing work and protected work could not be coincidental; and
• Substantial similarity exists between the works

Question 9

What is a trademark?

Answer 9

Distinctive mark, motto, device, or emblem that a manufacturer or service provider stamps, prints, or affixes to products it produces or services it performs to distinguish products or services from those of competitors

Question 10

What is a trade secret?

Answer 10

Any secret formula, pattern, process, program, device, method, technique, or database used in the owner’s business that offers competitive advantage

A firm must take reasonable measures to maintain secrecy

Question 11

What is misappropriation?

Answer 11

Misappropriation of a trade secret occurs when a person discloses or uses after acquiring the secret:

• By improper means (theft, trespass)
• Through another party who is known or should have been known to have obtained the secret by improper means
• By breaching a duty of confidentiality

Question 12

What are commercial torts?

Answer 12

Intentional torts that involve business or commercial competition

Question 13

What is injurious falsehood (product disparagement)?

Answer 13

Involves publishing false statements that disparage another’s business, property, or title to property, harming economic interests