LEGL 2700 Chapter 11 Flashcards
What does article 1, section 8, clause 8 of the Constitution establish?
gives congress the power to let authors and inverts the exclusive right to their respective writings and discoveries
what are trade secrets?
any form of knowledge or information that has economic value from not being known to others or ascertainable by proper means. the owner has to make reasonable efforts to maintain secrecy
what type of law are trade secrets protected by?
common law
how do you win a trade secrets case?
establish that a trade secret exists and demonstrate misappropriation
How do you establish the existence of a trade secret?
the info must be secret and the business must take reasonable measures to keep it a secret
what are examples to establishing the trade secret?
lock written material
secure computer-stored knowledge
regulate visitors
ask employees, customers, and business partners to sign a non disclosure agreements
impose confidentiality restrictions
how to demonstrate misappropriation?
misappropriation occurs when one improperly acquires or discloses secret info
what are examples of misappropriation?
burglary, espionage, computer hacking, breach of duty
what are remedies for civil misappropriation?
injunction and monetary damages
what are the remedies for criminal misappropriation via 18 USC 1832 (theft of trade secrets) ?
up to 10 years in prison and up to 5 million in fees
what are patents?
in associate with an inventive act, and conveys a right to exclude others from making, selling, or importing the covered invention
where are patent laws found?
under title 75 of the US Code
what are the steps to applying to the US Patent and Trademark Office?
pay filing fee
explain invention
show difference from prior art
descrive patentable aspects
file application
what is patentable subject matter?
process, machine, article of manufacture or composition of matter (or improvement thereto)
what certain categories of subject matter cannot be patented?
- laws of nature
- physical phenomena
- abstract idea
what are characteristics of patents?
novelty, nonobvious, and utility
what does novelty mean?
something that is new and different from prior art
what does nonobvious mean?
ability of an invention to produce surprising or unexpected results
what is utility?
must do something useful, new, nonobvious, useful processes, machines, compositions of matter or improvements thereof
what are the types of patents?
utility, design, plant
how long is the term for a utility patent?
20 years from filing date
what is a design patent?
new, original and ornamental design for an article of manufacture
how long is the term for a design patent?
15 years from issue date
what is a plant patent?
new variety of plant that can be reproduced asexually
how long is a plant patent term?
20 years from filing date
how are patents enforced?
patent owner can sue infringer for induction and/or damages and validity of patent can be challenged during litigation
what is Alice Corp. v CLS Bank?
plaintiffs filed lawsuit against Alice Corp. claiming that its patents for a system to settle financial transaction were invalid
What was the holding on Alice Corp. v CLS bank?
no
what is the Alice 2 step test?
determine whether the invention covers inenligible concept. if not, consider whether it add something sufficiently inventive to transform the claims into something more than the concept itself
what are trademarks?
marks on what is produced to represent the origin of goods and services, protects consumers against confusion
what act covers trademarks?
Lanham Act of 1946
what is an example of a trademark?
nike swoosh
what is a service mark?
a mark associate with a service
what is an example of a service mark?
LinkedIn logo
what is a certification mark?
a mark used by someone other than the owner to certify the quality of a good or service
what is an example of a collective mark?
NFL Logo
what is a collective mark?
mark represents membership in a collective organization
what is a trade dress?
the look of design of a product or service
what is an example of a trade dress?
design of a coke bottle
how is a civil trademark enforced?
trademark infringement claim
how is criminal trademark enforced?
manufacturing and trafficking counterfeit products in a crime
what can the defendant argue against a trademark?
the mark is not distinctive
there is a little chance of the public being confused
the use if a fair use
what is the federal trademark dilution act?
prohibits the usage of a mark same as or similar to another’s trademark to dilute its significance reputation and goodwill
what is blurring?
when usage of a mark blurs distinctiveness of a famous mark
what is tarnishment?
when usage of a mark creates a negative impression about the famous company
what is a copyright?
property right in creative expression that protects creators
work must be original
how must a copyright be fixed?
in tangible medium of expression
when does copyright protection attach to written work?
as soon as it is put into that tangible medium of expression
how is civil copyright enforced?
copyright infringement
how does an author establish civil copyright infringement?
register with the copyright office AND establish that defendant violated his or her exclusive rights of: reproduction, creation of derivative works, distribution, performance, and display
what is piracy?
large-scale copyright infringement
how long does individual copyright protection last?
lasts for your lifetime plus 70 years
how long does company copyright protection last?
the longer of 120 years from creation or 95 years from publication
what are the fair use defenses?
criticism
news reporting
scholarship
comment
teaching
research
what is MGM Studios v Grokster (2005)?
One who distributes a device with the object of promoting its use to infringe copyright is liable for the resulting acts of infringement by the 3rd parties
