INTELLECTUAL PROPERTY Flashcards
IMPROVE UNDERSTANDING
a term used to describe works of the mind—such as art, books, films, formulas, inventions, music, and processes—that are distinct and owned or created by a single person or group. It is protected through copyright, patent, and trade secret laws.
INTELLECTUAL PROPERTY
law protects authored works, such as art, books, film, and music;
COPYRIGHT LAW
protects inventions; and trade secret law helps safeguard information that is critical to an organization’s success.
PATENT LAW
exclusive right to distribute, display, perform, or reproduce an original work in copies or to prepare derivative works based on the work. Copyright protection is granted to the creators of “original works of authorship in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
COPYRIGHT
a violation of the rights secured by the owner of a copyright. Infringement occurs when someone copies a substantial and material part of another’s copyrighted work without permission. The courts have a wide range of discretion in awarding damages—from $200 for innocent infringement to $100,000 for willful infringement.
COPYRIGHT INFRINGMENT
types of work that can be copyrighted
Architecture, art, audiovisual works, choreography, drama, graphics, literature, motion pictures, music, pantomimes, pictures, sculptures, sound recordings, and other intellectual works, as described in Title 17 of the U.S. Code.
allows portions of copyrighted materials to be used without permission under certain circumstances. Title 17, Section 107, of the U.S. Code established that courts should consider the following four factors when deciding whether a particular use of copyrighted property is fair and can be allowed without penalty: Copyright law tries to strike a balance between protecting an author’s rights and enabling public access to copyrighted works.
FAIR USE DOCTRINE
Four factors when deciding whether a particular use of copyrighted property is fair and can be allowed without penalty:
The purpose and character of the use (such as commercial use or nonprofit, educational purposes)
The nature of the copyrighted work
The portion of the copyrighted work used in relation to the work as a whole
The effect of the use on the value of the copyrighted work
(Public Law 110-403) created the position of Intellectual Property Enforcement Coordinator within the Executive Office of the President. It also increased trademark and copyright enforcement and substantially increased penalties for infringement.
An act that created the position of Intellectual Property Enforcement Coordinator within the Executive Office of the President. It also increased trademark and copyright enforcement and substantially increased penalties for infringement.
Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008
a global organization that deals with the rules of international trade based on WTO agreements that are negotiated and signed by representatives of the world’s trading nations. It is headquartered in Geneva, Switzerland, and has 164 member nations as of July 2016. The goal of the WTO is to help producers of goods and services, exporters, and importers conduct their business globally
WTO - WORLD TRADE ORGANIZATION
An agreement of the World Trade Organization that requires member governments to ensure that intellectual property rights can be enforced under their laws and that penalties for infringement are tough enough to deter further violations.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
SUMMARY OF THE WTO TRIPS AGREEMENT
Table 6-1 Summary of the WTO Trips Agreement
Form of intellectual property Key terms of agreement
Copyright Computer programs are protected as literary works. Authors of computer programs and producers of sound recordings have the right to prohibit the commercial rental of their works to the public.
Patent Patent protection is available for any invention—whether a product or process—in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness, and industrial applicability. It is also required that patents be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced.
Trade secret Trade secrets and other types of undisclosed information that have commercial value must be protected against breach of confidence and other acts that are contrary to honest commercial practices. However, reasonable steps must have been taken to keep the information secret.
headquartered in Geneva, Switzerland, is an agency of the United Nations established in 1967. is dedicated to “the use of intellectual property as a means to stimulate innovation and creativity.” It has 185 member nations and administers 25 international treaties. Since the 1990s, has strongly advocated for the interests of intellectual property owners. Its goal is to ensure that intellectual property laws are uniformly administered.
provides additional copyright protections to address electronic media. The treaty ensures that computer programs are protected as literary works and that the arrangement and selection of material in databases is also protected. It provides authors with control over the rental and distribution of their work and prohibits circumvention of any technical measures put in place to protect the works.
WIPO - WORLD INTELLECTUAL PROPERTY ORGANIZATION COPYRIGHT TREATY
WHAT IS THE LAW IN THE US THAT IMPLEMENTS THE WIPO TREATED
DMCA - DIGITAL MILLENIUM COPYRIGHT ACT
NAME PART OF DMCA THAT REFERES TO dealing with anticircumvention provisions makes it an offense to do any of the following:
Circumvent a technical protection
Develop and provide tools that allow others to access a technologically protected work
Manufacture, import, provide, or traffic in tools that enable others to circumvent protection and copy a protected work
Violations of these provisions carry both civil and criminal penalties, including up to five years in prison, a fine of up to $500,000 for each offense, or both.
TITLE 1 OF THE DMCA
NAME PART OF DMCA THAT REFERS TO Provides “safe harbors” for Internet service providers (ISPs) whose customers/subscribers might be breaking copyright laws by downloading, posting, storing, or sending copyrighted material via its services. If an ISP has knowledge of infringing material and fails to take action to remove the material, it is not protected by the safe harbor measures. The ISP must also comply with clearly defined “notice and takedown” procedures that grant copyright holders a quick and simple way to halt access to allegedly infringing content.
TITLE 2 OF THE DMCA
permits its owner to exclude the public from making, using, or selling a protected invention, and it allows for legal action against violators. Unlike a copyright, a prevents independent creation as well as copying. IT IS A PROPERTY RIGHT
PATENT
The rights of the patent are valid only in the United States and its territories and possessions.
OUT OF THE SIX TYPES OF PATENTS WHAT ARE THE TWO THAT ARE UNIQUE TO TECHNOLOGY
UTILITY PATENT
DESIGN PATENT
“issued for the invention of a new and useful PROCESS, machine, manufacture, or composition of matter, or a new and useful improvement thereof, it generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of application filing, subject to the payment of maintenance fees.
UTILITY PATENT
issued for a new, original, and ornamental DESIGN embodied in or applied to an article of manufacture,” permits its owner to exclude others from making, using, or selling the design in question. Design patents issued from applications filed on or after May 13, 2015, are granted for a term of 15 years from the date of grant.
DESIGN PATENT
GOVERNMENT AGENCY IN CHARGE OF PATENTS
U.S. Patent and Trademark Office (USPTO)
The existing body of knowledge available to a person of ordinary skill in the art—starting with patents and published material that have already been issued in the same area.
PRIOR ART
RESEARCHED BY USPTO FOR PATENT APPLICATIONS
violation of the rights secured by the owner of a patent, occurs when someone makes unauthorized use of another’s patent
PATENT INFRINGMENT
no specified dollar amount limitation on the monetary penalty if patent infringement is found. In fact, if a court determines that the infringement is intentional, it can award up to three times the amount of the damages claimed by the patent holder.
LAW ON PATENT THAT STATES first-inventor-to-file”
Leahy-Smith America Invents Act
agreements in which each party agrees not to sue the other over patent infringements.
CROSS LICENSING
defined as business information that represents something of economic value, has required effort or cost to develop, has some degree of uniqueness or novelty, is generally unknown to the public, and is kept confidential.
TRADE SECRETS
Trade secret laws protect more technology worldwide than patent laws do
There are no time limitations on the protection of trade secrets, as there are with patents and copyrights.
There is no need to file an application, make disclosures to any person or agency, or disclose a trade secret to outsiders to gain protection. (After the USPTO issues a patent, competitors can obtain a detailed description of it.) Hence, no filing or application fees are required to protect a trade secret.
Although patents can be ruled invalid by the courts, meaning that the affected inventions no longer have patent protection, this risk does not exist for trade secrets.
LAW THAT PROTECTS TRADE SECRETS IN US
An act drafted in the 1970s to bring uniformity to all the United States in the area of trade secret law.
Uniform Trade Secrets Act (UTSA)
The UTSA defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by, persons who can obtain economic value from its disclosure or use, and
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Under these terms, computer hardware and software can qualify for trade secret protection by the UTSA.
(18 U.S. Code § 183) imposes penalties of up to $10 million and 15 years in prison for the theft of trade secrets.
Economic Espionage Act (EEA) of 1996
Public Law No.: 114-153) amended the EEA to create a federal civil remedy for trade secret misappropriation.
Defend Trade Secrets Act of 2016 (DTSA)
Prior to its enactment, civil claims for trade secret misappropriation were primarily governed by state law
disclosure or use of a trade secret without express or implied consent or acquisition of a trade secret by anyone with reason to know the trade secret was acquired by theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.
MISAPPROPRIATION
prohibit employees from revealing secrets THROUGH A CONTRACT
NON DISCLOSURE
protect intellectual property from being used by competitors when key employees leave.
NON COMPETE AGREEMENT
prohibits an employee from working for any competitors for a period of time, often one to two years.
act of stealing someone’s ideas or words and passing them off as one’s own
plagiarism
process of taking something apart in order to understand it, build a copy of it, or improve it. It was originally applied to computer hardware but is now commonly applied to software as well
REVERSE ENGINEERING
any program whose source code is made available for use or modification, as users or other developers see fit.
OPEN SOURCE CODE
Two frequently cited reasons for using open source software are that it provides a better solution to a specific business problem and that it costs less.
Reasons that firms or individual developers create open source code, even though they do not receive money for it, include the following:
Some people share code to earn respect for solving a common problem in an elegant way.
Some people have used open source code that was developed by others and feel the need to pay back by helping other developers.
A firm may be required to develop software as part of an agreement to address a client’s problem. If the firm is paid for the employees’ time spent to develop the software rather than for the software itself, it may decide to license the code as open source and use it either to promote the firm’s expertise or as an incentive to attract other potential clients with a similar problem.
A firm may develop open source code in the hope of earning software maintenance fees if the end user’s needs change in the future.
A firm may develop useful code but may be reluctant to license and market it, and so might donate the code to the general public.
legally obtained information that is gathered to help a company gain an advantage over its rivals
Competitive intelligence
The Web is the best competitive intelligence tool in the world
use of illegal means to obtain business information not available to the general public.
industrial espionage,
logo, package design, phrase, sound, or word that enables a consumer to differentiate one company’s products from another’s
TRADEMARK
defines the use of a trademark, the process for obtaining a trademark from the USPTO, and the penalties associated with trademark infringement. The law gives the trademark’s owner the right to prevent others from using the same mark or a confusingly similar mark on a product’s label.
Lanham Act of 1946 (also known as the Trademark Act, Title 15, of the U.S. Code)
registered domain names for famous trademarks or company names to which they had no connection, with the hope that the trademark’s owner would eventually buy the domain name for a large sum of money.
CYBERSQUATTING
most types of trademark-based domain name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name. The policy is designed to provide for the fast, relatively inexpensive arbitration of a trademark owner’s complaint that a domain name was registered or used in bad faith.
Uniform Domain-Name Dispute-Resolution Policy,
UNDER ICANN
nonprofit corporation responsible for managing the Internet’s domain name system.
ICANN - Internet Corporation for Assigned Names and Numbers
allows trademark owners to challenge foreign cybersquatters who might otherwise be beyond the jurisdiction of U.S. courts. Also under this act, trademark holders can seek civil damages of up to $100,000 from cybersquatters that register their trade names or similar-sounding names as domain names. The act also helps trademark owners challenge the registration of their trademark as a domain name even if the trademark owner has not created an actual website.
Anticybersquatting Consumer Protection Act (ACPA)
