IP Flashcards
Policies behind IP protection
Fairness - A person who creates a new song or new invention should be able to profit from it
Economic efficiency - Want to encourage creative behavior
Sources of IP law
Patent - Federal Statutes
Copyright - Federal Statutes, “hot news” supplemented by state law
Trademark - Federal statute and state law
Trade Secrets - State Law
Patent
Gives inventor or discoverer the exclusive right to make and sell the invention for 20 years from the application date
Three Requirements of a Patent
(1) Usefulness - Must be capable of performing some beneficial function
(2) Novelty - Must be new and not known to others Not a mere change. A square trash can rather than a round one does not suffice
(3) Nonobvious - Even if the invention is novel it must not be obvious at the time of invention to someone of ordinary skill.
- If it is something that would be obvious to someone of normal skill it is not an invention, but rather the work of a skillful mechanic
Design Patents
Can patent unique designs too - Curves on an iPhone
Genetic Material
BRCA1 BRCA2 - discovery of nature is not invention, not patentable. New unique techniques can be patentable as well as synthetically created genetic material
Copyright
Protects original works of authorship that are fixed in any tangible medium of expression
No copyright for ideas until they are written down or recorded
Copyright - Registration
Not required
Advantages - (1)informs the public of copyright claim and provides evidence of it
(2) Owners of registered copyright can get statutory damages and litigation costs if they bring a successful lawsuit
Copyright - How long does it last?
Works created after 1/1/78 lapses after death of original author + 70 years
Anonymous authors / Work for hire -
- 95 years from first publication
- 120 years from original creation, whichever is shorter
Copyright - Fair Use
Not infringement when used for: Criticism Comment News Reporting Teaching Scholarship research
Factors in determining fair use -
1) Purpose and character of work - commercial or non profit
2) Nature of copyrighted work
3) amount and substantiality of the portion used in relation to the work as a whole
4) The effect of the use on the market or value of the work
Trademark
Allows businesses to differentiate their products and services, and for customers to assure they know what they are buying
Trademark - Registration
Not required - can be protected by state common law
Provides prima facie case of ownership
Lanham Act (adopted in the majority of states) profibits other companies from using words or phrases that might confuse customers as to the origin of the product. Chevy can prevent other companies from selling cars called “Camaro” without registering it
Trademark - Distinctive
To be protectable, a word or logo must be distinctive
1)Fanciful - Word created especially for product
EX. Clorox
2) Arbitrary - Word exists but has no relationship to particular produce it is identifying
EX: Apple computers
3) Suggestive - Suggests features of product without being descriptive
EX: Coppertone sunscreen
4) Descriptive - only protectable if if it has acquired a second meaning
EX: Weight Watchers
Trademark - How long do they last?
As long as it is in use, not abandoned, and is actively protected against infringement
Trade Secrets - UTSA
Uniform Trade Secrets Act
Adopted by 40 states
