Exam 2 Terms Flashcards
shrinkwrap
the cellophane around software that constitutes an enclosed package
digital signature
a PIN generated by a complex mathematical formula that can be used, in combination with specialized software, to authenticate the sender of a message and that the content has not been altered in transit.
35 USC $102
Novelty section of US patent law that changed on March 16, 2013 from ‘first to invent’ to ‘first to file’
trademark
a distinctive mark of authenticity, through which the product of particular manufacturers or the vendable commodities of particular merchants may be distinguished from those of others.
tying arrangements
requirements that the buyer of a product or service purchase a second, distinct product or service as a condition of purchasing the first
“means for” analysis
how patent claim elements are studied to determine their specific definitions with reference to what is disclosed in a patent’s specification.
horizontal restraint
A successful operation of a price-fixing cartel would be a good example of this.
common carrier
A transporter who holds himself out to the general public for the transportation of goods over a definite route and according to a regular schedule.
contract
A traditional business document requiring offer, acceptance, and consideration; requiring ink on paper signatures.
last mile
The term referring to the telecommunications link into the home/business over which cable and phone companies have battles.
E-SIGN
The acronym for Electronic Signatures in Global and National Commerce Act
nonobviousness under 35 USC $103
all the elements of the patent claim may not be found in 2 or more items of prior art and a person skilled in the art and with prior art would not find the invention apparent.
domain name
the name an individual or entity uses to identify its Web site.
Enablement and Claims (35 USC $112)
Lists what must be included in the “specification” of a patent application, including the level of technical detail required to allow a person skilled in the art to make and use the invention, as well as the best mode of making and using it.
ICANN
the organization that assumed control in 1999 of domain name registration and has the power to license organizations to become domain name registrars.
diversity of citizenship
a basis for federal court jurisdiction over a lawsuit that arises when (1) the parties of the lawsuit live in different states or when one of the party is a foreign government or a foreign citizen, and (2) the amount in controversy is more than $75,000.
trade secret
a formula, pattern, device, or compilation of information which is used in one’s business and which gives one opportunity to obtain advantage over competitors who do not know or use it.
Markman hearing
The judge (never a jury) uses expert testimony and other evidence to analyze the meaning of patent terms prior to any litigation.
in rem jurisdiction
gives the court power to adjudicate a claim about a piece of property or a status
procedural due process
means the court must have given the defendant adequate notice of the action against her and an opportunity to be heard.
patent
a government instrument conveying the exclusive right to make and sell a new invention
open source
the source program or operating system software is made freely available for modification, corrections, and redistribution.
long-arm statute
permits the state court to get jurisdiction over persons not physically present within the state at the time of service.
jurisdiction
the general power of a court to make legally binding decisions over certain persons, property, and/or geographical areas
subject matter jurisdiction
the court’s power to decide the kind of case before it (e.g. a case where the parties come from different states)
cybersquatter
someone who registers a recognized name or its misspelling as his/her own domain name when it would be recognized by the general public as belonging to someone else
substantive due process
the power that comes from the 14th amendment that gives the court the power to act, either upon particular property or on a particular person so as to subject her to personal liability
in personam jurisdiction
the court’s power to issue a judgment against an individual that would allow the individual to be placed in jail
quasi in rem jurisdiction
a judgment affects only the property seized. The thing seized is a pretext for the court to decide a case without having jurisdiction over the defendant.
antitrust
the body of law that attempts to support free competition in the marketplace by curbing monopolistic and unfair trade practices
WIPO
one of 4 organizations approved to resolve domain name disputes
UETA
some state legislatures have adopted this uniform law so as to authorize the use of electronic documents and electronic signatures instead of paper documents and paper signatures
vertical restraints
restrictions on intra-brand competition between firms operating at different levels of the manufacturing or distribution chain that restrict conditions under which firms may purchase, sell, or resell.
doctrine of equivalents
permits a finding of patent infringement when literal infringement cannot be found for all elements
vaporware
false and misleading announcements of forthcoming competitive products which misleads the public by making them want to wait to buy - thus hurting competition
initial interest confusion
where a customer is diverted to a competitor’s location by misuse of a trademark. Even though the customer may realize the mistake once he gets to the competitor’s website, the competitor has gained an advantage by getting the customer to look at its wares
patent troll
a person or company that attempts to license patents it never intended to practice
blurring
use of the same trademark on a second product as an attempt to make the customer focus less clearly on the original mark as an indication of the source of the product
prior art
a list of patents and other document showing intellectual properties similar to the ones that an inventor wants to patent
per se antitrust violation
traditional fixing of minimum prices, certain agreements on market division and exclusive dealings, group boycotts, tying
tie-in sales
when a company, with a monopoly on one product, uses this monopoly to force customers to buy another product from the same company
phishing
fraudulently soliciting consumers so as to obtain personally identifiable information
Telecommunications Act of 1996
federal legislation that encouraged competition among phone companies, broadband internet services, video services, and cable companies
minimum contacts
a “term of art” meaning that a defendant has taken actions purposefully directed toward the forum state (e.g. by buying or selling goods in that state)
Rule of Reason
In an antitrust action, where the challenged activity is not a per se violation, the court uses this to balance the pro-competitive benefits against the anticompetitive effects to ensure that competition is being maintained or strengthened rather than restrained
consent decree
an agreement between two parties that is sanctioned by the court
tarnishment
the defendant’s trademark created a bad association with the plaintiff’s trademark
file wrapper estoppel
the scope of a patent claim cannot be limited by 15 USC $112 to cover a process or apparatus that was specifically disclaimed by the applicant during the prosecution or a patent
predatory pricing
a 3-stage process whereby: (1) a company drastically lowers prices; (2) there is an exit of producers who can;t compete; (3) the company then recoups the losses and makes money with a monopoly
network effects
gains to be achieved if everyone uses the same industry standard
switching costs
costs of changing industry standards
Uniform Domain Name Dispute Resolution Policy (UDRP)
a process established by ICANN for the resolution of disputes regarding the registration of internet domain names. applies to all .biz, .com, .info, .name, .net, and .org top-level domains, and some country code top-level domains
uniform law
a law that all state statute drafters can copy and enact in their own states
monopolization
the power to control market prices or exclude competition, and the unlawful acquisition or maintenance of that power
network neutrality
creating and preserving what the FCC calls the open internet
cloud computing
convenient, on demand network access to a shared pool of configurable computing resources. Most models include a provider who manages and controls all aspects of keeping the service running and current
worm
a piece of malicious software (sometimes called a virus) that can, unaided, replicate itself from one computer to another by taking advantage of system vulnerabilities or inherent design issues
botnets
a collection of compromised computers that run autonomously and automatically at the behest of a “herder” who has placed the malicious controlling software on the computer without the owner or user’s knowledge
use tax
a tax imposed by a state to compensate for the sales tax lost when an item is purchased outside of the state, but is used within the state
willful blindness
a person subjectively believes that there was a high probability that a certain fact exists and takes deliberate actions to avoid learning of that fact
classic fair use
the defendant uses the plaintiff’s mark in a descriptive or nontrademark manner to describe the defendant’s products or services
nominative fair use
the defendant uses the plaintiff’s mark to describe the plaintiff’s products or services
gTLD
the part of the domain name to the right of the last dot
