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GSU BUSA 2106 - Intellectual Property

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Slide 1Slide 2Slide 3Slide 4Slide 5Slide 6Slide 7Slide 8Slide 9Slide 10Slide 11Slide 12Slide 13Slide 1412/31/2020 1Grelecki BUSA 2106Intellectual Property12/31/2020 2Grelecki BUSA 2106Intellectual PropertyThe legal rights which result from intellectual activity in the industrial, scientific, literary, and artistic fields. (WIPO IP Handbook)Four Main Types: 1.Patents2.Trademarks3.Trade Secret4.Copyright12/31/2020 3Grelecki BUSA 2106Intellectual PropertyPatents•Source of Law – Patent Act (federal)•Theory – Offer a limited monopoly (exclusive right to make, use, and sell ) to encourage production of utilitarian works, as long as “inventor” provides immediate disclosure (files for patent) for the ultimate enrichment of the public domain•Subject Matter:•Designs•Utilities•Plants•Excludes laws of nature, natural phenomenon, abstract ideas•Standard for Protection – You must file a patent application with the USPTO and your invention must be:•Useful (has utilitarian value; rarely an issue)•Novel (something new, as compared to “prior art”)•Non-Obvious (to one skilled in the art, as compared to “prior art”)12/31/2020 4Grelecki BUSA 2106Intellectual PropertyPatents•Most Common Types of Patents•Utility•Most often sought type of patents•Protect (available for):•(1) machines (concrete things with parts that do stuff); •(2) manufacture (things made from raw materials);•(3) compositions of matter (new mix of substances)•(4) processes/methods (steps/acts producing a result)•Protects the way things are used and how they work/function•Last for 20 years, from date of filing patent application•Design•Protect the appearance (shape/aesthetics) of manufactured articles •Protect the way things look and feel•Can be issued in conjunction with a utility patent•Issued for 14 years, from date of grant•After the 20 or 14 years, the invention enters the public domain (comes “off patent”) and anyone can make, sell, use12/31/2020 5Grelecki BUSA 2106Intellectual PropertyPatents•Infringement•Unauthorized making, use, or sale of patented utility or design •Can occur even if product not in commerce•Can occur even if not all features/parts of the product are copied, unless a process (all steps must be copied to infringe upon patented process)•Can result in Injunction, Lost profits (damages), Royalties (damages or deal)12/31/2020 6Grelecki BUSA 2106Intellectual PropertyTrademarks•Source of Law – Lanham Act (federal); unfair competition law (state common law)•Theory – Provide perpetual protection for distinctive, nonfunctional names and “dress” (colors, symbols) in order to maintain quality of information in the marketplace and avoid customer confusion regarding source of goods/services•Subject Matter:•Trademarks (distinctive sign/indicator; logo);•Trade Dress (characteristics of the visual appearance of a product or its packaging); •Service Marks (source of services, not goods); •Certification Marks (e.g., Good Housekeeping); •Collective Marks (e.g., CPA) •Standard for Protection – Your mark must be distinctive, be in use in commerce, and be famous OR take on secondary meaning; no requirement to file/registration, but registration has benefits:•Use the ® symbol•Access to Federal Courts (Lanham Act)•Assist with foreign registration•Notice to others of exclusive ownership•BK (Mattoon, IL)12/31/2020 7Grelecki BUSA 2106Intellectual PropertyTrademarks•A word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods/services of one company from those of others•The law seeks to avoid confusion, so others cannot use your mark in such a way that would dilute the power of your mark (people uncertain of what mark represents) •Distinctiveness is key•Marks must be sufficiently distinctive from others to avoid confusion•Typically must be fanciful, arbitrary, suggestive, invented words•If not “distinctive,” must have Secondary Meaning•Descriptive terms, geography, personal names are not distinct•Such terms take on secondary meaning when customers begin to associate terms to trademarked items•Depends on advertising, sales, etc.•Generic terms are NOT distinctive•Cannot refer to entire class of products•A distinctive mark can become generic (i.e., Kleenex, Q-Tip, Band-Aid, Ziploc, Escalator)12/31/2020 8Grelecki BUSA 2106Intellectual PropertyTrademarks•Infringement•Unauthorized use of the mark, which creates likelihood of confusion about origin of goods/services•Must be similar goods/services, not too far removed (Hall & Oats TM)•Can result in Injunction, Money damages, Destruction of infringing goods12/31/2020 9Grelecki BUSA 2106Intellectual PropertyTrade Secrets•Source of Law – Defend Trade Secrets Act of 2015 (effective May 11, 2016); Uniform Trade Secrets Act (state statutes and resulting common law)•Theory – People need to be free to contract and avoid unfair means of competition (tell people stuff without them using it to compete against me)•Subject Matter:•Formula•Customer List•Techniques•Methods/Systems/Processes/Procedures•Standard for Protection – Information must not be generally known or available, creating commercial value (giving you a competitive advantage) b/c only you have/know it, AND owner must take reasonable steps to maintain its secrecy•No registration requirements•Owners must be careful to share only with those employees who “need to know,” which is why you see confidentiality, non-disclosure, and non-compete agreements for employees12/31/2020 10Grelecki BUSA 2106Intellectual PropertyTrade Secrets•Misappropriation (TS equivalent of infringement)•D obtains trade secret by improper means (theft, breach of agreement); OR•D publishes trade secret, knowing someone else obtained it improperly•Can result in Injunction or Money damages•Now (with DTSA), owner can sue in Federal court12/31/2020 11Grelecki BUSA 2106Intellectual PropertyCopyrights•Source of Law – Copyright Act of 1976 (federal)•Theory – Offer a “limited” monopoly to encourage the authorship of expressive works•Works created after 1/1/1978 automatically protected for life of the author, plus 70 years; works by more than one author expire 70 years after death of last surviving author•Anonymous, pseudonymous works, works for hire expire 95 years from date of publication or 120 years from date of creation, whichever


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