Exam 2 Terms

Question 1

shrinkwrap

Answer 1

the cellophane around software that constitutes an enclosed package

Question 2

digital signature

Answer 2

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.

Question 3

35 USC $102

Answer 3

Novelty section of US patent law that changed on March 16, 2013 from ‘first to invent’ to ‘first to file’

Question 4

trademark

Answer 4

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.

Question 5

tying arrangements

Answer 5

requirements that the buyer of a product or service purchase a second, distinct product or service as a condition of purchasing the first

Question 6

“means for” analysis

Answer 6

how patent claim elements are studied to determine their specific definitions with reference to what is disclosed in a patent’s specification.

Question 7

horizontal restraint

Answer 7

A successful operation of a price-fixing cartel would be a good example of this.

Question 8

common carrier

Answer 8

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.

Question 9

contract

Answer 9

A traditional business document requiring offer, acceptance, and consideration; requiring ink on paper signatures.

Question 10

last mile

Answer 10

The term referring to the telecommunications link into the home/business over which cable and phone companies have battles.

Question 11

E-SIGN

Answer 11

The acronym for Electronic Signatures in Global and National Commerce Act

Question 12

nonobviousness under 35 USC $103

Answer 12

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.

Question 13

domain name

Answer 13

the name an individual or entity uses to identify its Web site.

Question 14

Enablement and Claims (35 USC $112)

Answer 14

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.

Question 15

ICANN

Answer 15

the organization that assumed control in 1999 of domain name registration and has the power to license organizations to become domain name registrars.

Question 16

diversity of citizenship

Answer 16

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.

Question 17

trade secret

Answer 17

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.

Question 18

Markman hearing

Answer 18

The judge (never a jury) uses expert testimony and other evidence to analyze the meaning of patent terms prior to any litigation.

Question 19

in rem jurisdiction

Answer 19

gives the court power to adjudicate a claim about a piece of property or a status

Question 20

procedural due process

Answer 20

means the court must have given the defendant adequate notice of the action against her and an opportunity to be heard.

Question 21

patent

Answer 21

a government instrument conveying the exclusive right to make and sell a new invention

Question 22

open source

Answer 22

the source program or operating system software is made freely available for modification, corrections, and redistribution.

Question 23

long-arm statute

Answer 23

permits the state court to get jurisdiction over persons not physically present within the state at the time of service.

Question 24

jurisdiction

Answer 24

the general power of a court to make legally binding decisions over certain persons, property, and/or geographical areas

Question 25

subject matter jurisdiction

Answer 25

the court’s power to decide the kind of case before it (e.g. a case where the parties come from different states)

Question 26

cybersquatter

Answer 26

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

Question 27

substantive due process

Answer 27

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

Question 28

in personam jurisdiction

Answer 28

the court’s power to issue a judgment against an individual that would allow the individual to be placed in jail

Question 29

quasi in rem jurisdiction

Answer 29

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.

Question 30

antitrust

Answer 30

the body of law that attempts to support free competition in the marketplace by curbing monopolistic and unfair trade practices

Question 31

WIPO

Answer 31

one of 4 organizations approved to resolve domain name disputes

Question 32

UETA

Answer 32

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

Question 33

vertical restraints

Answer 33

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.

Question 34

doctrine of equivalents

Answer 34

permits a finding of patent infringement when literal infringement cannot be found for all elements

Question 35

vaporware

Answer 35

false and misleading announcements of forthcoming competitive products which misleads the public by making them want to wait to buy - thus hurting competition

Question 36

initial interest confusion

Answer 36

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

Question 37

patent troll

Answer 37

a person or company that attempts to license patents it never intended to practice

Question 38

blurring

Answer 38

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

Question 39

prior art

Answer 39

a list of patents and other document showing intellectual properties similar to the ones that an inventor wants to patent

Question 40

per se antitrust violation

Answer 40

traditional fixing of minimum prices, certain agreements on market division and exclusive dealings, group boycotts, tying

Question 41

tie-in sales

Answer 41

when a company, with a monopoly on one product, uses this monopoly to force customers to buy another product from the same company

Question 42

phishing

Answer 42

fraudulently soliciting consumers so as to obtain personally identifiable information

Question 43

Telecommunications Act of 1996

Answer 43

federal legislation that encouraged competition among phone companies, broadband internet services, video services, and cable companies

Question 44

minimum contacts

Answer 44

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)

Question 45

Rule of Reason

Answer 45

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

Question 46

consent decree

Answer 46

an agreement between two parties that is sanctioned by the court

Question 47

tarnishment

Answer 47

the defendant’s trademark created a bad association with the plaintiff’s trademark

Question 48

file wrapper estoppel

Answer 48

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

Question 49

predatory pricing

Answer 49

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

Question 50

network effects

Answer 50

gains to be achieved if everyone uses the same industry standard

Question 51

switching costs

Answer 51

costs of changing industry standards

Question 52

Uniform Domain Name Dispute Resolution Policy (UDRP)

Answer 52

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

Question 53

uniform law

Answer 53

a law that all state statute drafters can copy and enact in their own states

Question 54

monopolization

Answer 54

the power to control market prices or exclude competition, and the unlawful acquisition or maintenance of that power

Question 55

network neutrality

Answer 55

creating and preserving what the FCC calls the open internet

Question 56

cloud computing

Answer 56

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

Question 57

worm

Answer 57

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

Question 58

botnets

Answer 58

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

Question 59

use tax

Answer 59

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

Question 60

willful blindness

Answer 60

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

Question 61

classic fair use

Answer 61

the defendant uses the plaintiff’s mark in a descriptive or nontrademark manner to describe the defendant’s products or services

Question 62

nominative fair use

Answer 62

the defendant uses the plaintiff’s mark to describe the plaintiff’s products or services

Question 63

gTLD

Answer 63

the part of the domain name to the right of the last dot