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Flashcards in IP Deck (18)
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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



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



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:
News Reporting

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



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


Trade Secrets

Under UTSA

Trade Secretes are information that (1) derive independent economic value from not being known or ascertainable to other persons who could gain economic value from its disclosure, and (2) is the subject of reasonable efforts to maintain its secrecy


Trade Secrets - Examples

Formulas - Coke

Patterns, plans, designs - a marketing strategy or design for new manufacturing facility

Process or physical devices - a unique way to spray paint on a car


Trade Secrets - advantages and disadvantges

Advantages - provide protect while waiting for patent approval, no tim limit - last as long as they are kept secret, can keep information confidential

Disadvantages - Not protected or others figure out information on their own