Intelectual Property Flashcards
Is the basis for intellectual property rights at common law or statutory?
Statutory. There is no common law protection of intellectual property. Cheney Brothers v. Dorris Silk Corp.
- Exception: Common law does provide protection against the imitation or appropriation of a celebrity’s name and likeness. White v. Samsung.
Where does the common law’s protection of “name and likeness” come from?
The common law’s protection of “name and likeness” comes from the common law’s right of publicity, and not from any common law protection of intellectual property.
What are the elements of the common law’s right to publicity cause of action?
- The defendant’s use of the plaintiff’s identity; or
- The appropriation of the plaintiff’s name or likeness to the defendant’s advantage, commercially or otherwise;
- Without consent
- Resulting in injury
Four types of intellectual property? Which type of law generally governs each type?
- Copyright, Constitutional law and federal statute
- Patents, Constitutional law and federal statute
- Trademarks, generally state statute, but also federal statute
- Trade Secrets, federal statute
What federal statute governs copyrights?
1976 Copyright Act
What are the three elements of a copyright under the 1976 Copyright Act.
- Originality
- Works of authorship
- Fixation
For how long does the 1976 Federal Copyright Act protect works of authorship?
70 years for private authorship, 90 years for corporate/work for higher authorship
Must copyrights be registered? Is notice required?
No.
What are the two elements of copyright infringment?
- ownership of a valid copyright
2. copying of constituent elements of the work that are original
When will the publishing of facts meet the requisite “minimum level of creativity?”
When the selection and arrangement of the facts meet the “minimum level of creativity.”
Why does the Constitution grant Congress the power to regulate patent law?
“[t]o promote the Progress of Science and the useful Arts…”
Can abstract concepts, mathematical algorithms, scientific principles, and physical phenomena be patented?
No
What is the current federal statute that regulates patent law? What are the elements that the statute requires for a patent?
35 U.S.C. § 101
- Patentable subject matter
- Utility
- Novelty
- Nonobviousness
- Enablement
Under U.S.C. 35 § 101, what is the current term for patents?
20 years
Under 35 U.S.C. § 101, what are the four patentable subject matters?
- Process
- Machine
- Manufacture
- Composition of matter
Under 35 U.S.C. § 101, what is the definition of “utility?”
The utility element is satisfied if the process/machine/manufacture/composition of matter provides actual benefit to humans
(this is rarely an issue, extremely low standard)
Under 35 U.S.C. § 101, what is the definition of “novelty?”
For a process/machine/manufacture/composition of matter to be novel, it must be distinguishable from all which preceded it
Under 35 U.S.C. § 101, what is the definition of “nonobviousness.”
Novelty must not have been obvious for a “person of ordinary skill to have noticed.”
Under 35 U.S.C. § 101, what is the definition of “enablement?”
The patent must provide enough detail for a similar person to replicate the process/machine/manufacture/composition of matter
When with the Patent and Trademark Office (PTO) issue a patent? Does this mean that the patent is valid?
PTO will issue patent if all five elements, (subject matter, utility, novelty, nonobviousness, and enablement) are met.
This does NOT mean that the patent is valid. Many patents are held invalid by courts after litigation.
Is a living, human made, microorganism patentable?
Yes. A living, human made, microorganism could constitute either a manufacture/composition of matter. So long as it is created by humans and not naturally occuring, it is patentable. Diamond v. Chakrabarty.
What is required to prove literal infringement of a copyright?
To prove literal infringement, one must show that every element of a patent claim is present in the allegedly infringing product. If just one is missing, the claim will fail. Larami Corp. v. Amron (holding that because the allegedly infringing watergun did not have an “elongated housing having a chamber therein for a liquid,” as the original patent stated, it did not infringe on the patent).
What federal statute governs trade/service marks
Federal Lanham Act of 1947
Can a color be trademarked?
Yes. Just as a word, name, symbol, or device may be trademarked if it identifies and distinguishes a particular brand, a color may also be trademarked if it acquires a “second meaning” which identifies and distinguishes a particular brand.
