LEGS 3010: CHAPTER 12
40 Cards in this Set
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Copyright
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The protection of the expression of a creative work; i.e., protection of the fixed form that expresses the ideas.
Ex: such as books, periodicals, musical compositions, plays, motion pictures, sound recordings, lectures, works of art, and computer programs.( Titles and short phrases may…
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three criteria for a work to be copyrightable...
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First, it must be fixed, which means set out in a tangible medium of expression.
Second, it must be original.
Third, it must be creative.
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Cross-licensing
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An illegal contractual agreement in which 2 or more parties license each other to use their specified intellectual property only on the condition that neither licenses anyone else to use the property without the others consent.
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Fair-use doctrine
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the doctrine which provides for the lawful use of a limited portion of another's work for purposes of criticism, comment, news, reporting, teaching, scholarship, or research.
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In determining whether the fair-use doctrine provides a valid defense to a claim of copyright infringement, Section 107 of the Copyright Act requires that the court weigh the following four factors:
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The purpose & character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use…
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Intellectual property
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Intangible property that is the product of one's mind and not one's hands.
protect property that is primarily the result of mental creativity rather than physical effort.
Protection for various forms of intellectual property comes from trademarks, trade secret protection, patents, and…
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Patent
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Protection that grants the holder the exclusive right to produce, sell, and use the patented object for 20 years; can be obtained for a product, process, invention, or machine or a plant produced by asexual reproduction.
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For a patent to be granted, four criteria must be satisfied
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First, the subject matter of the patent must be patentable. Second, the object of the patent must be novel, or new. No one else must have previously made or published the plans for this object. Third, the object must be useful, unless it is a design. It must provide some utility to societ…
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The holder of the patent may license
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allow others to manufacture and sell, the patented object. In most cases, patents are licensed in exchange for the payment ofroyalties, a sum of money paid for each use of the patented process.
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patent owners tend to file in certain district courts:
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the Northern District of California, the District of Delaware, and the Eastern District of Texas. Patent holders prefer to file in these courts for at least two reasons: (1) The judges in these district courts have more experience with technical issues in patent cases; and (2) juries in t…
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ANATOMY OF PATENT LITIGATION-1
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1. after the initial pleadings (i.e., complaint and answer) are filed, the patent holder must file patent infringement contentions that explain in detail how the defendant infringes the patent
2.he defendant must file invalidity contentions that explain why the ideas in the patent alre…
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ANATOMY OF PATENT LITIGATION-2
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3. the parties identify all the terms in the patent that have special definitions and provide their proposed def. of these terms. This step is very important b/c a party may or may not infringe a patent depending on the def. of certain words in the patent.
4. the court considers the prop…
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Trade dress
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The overall appearance and image of a product.
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to succeed on a claim of trade-dress infringement, a party must prove three elements:
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(1) The trade dress is primarily nonfunctional;
(2) the trade dress is inherently distinctive or has acquired a secondary meaning;
(3) the alleged infringement creates a likelihood of confusion.
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Trade Secret
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A process, product, method of operation, or compilation of information that gives a businessperson an advantage over his or her competitors.
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To enjoin such a competitor from continuing to use a trade secret and/or to recover damages caused by the use of the secret, a plaintiff must prove that:
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A trade secret actually existed.
The defendant acquired it through unlawful means, such as breaking into the plaintiff's business and stealing it or securing it through misuse of a confidential relationship with the plaintiff or one of the plaintiff's present or former employees.
The de…
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why choose patent over trade secret
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An inventor who successfully patents an invention and defends the patent has a guaranteed monopoly on the use of the invention for 20 years, a substantial period of time. Once this period is over, however, the patented good goes into the public domain and everyone has access to it. There …
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why choose trade secret over patent
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Trade-secret law, on the other hand, could protect the invention in perpetuity. But once someone discovers the secret lawfully, the protection is lost.
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Trademark
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A distinctive mark, word, design, picture, or arrangement that is used by a producer in conjunction with a product and tends to cause consumers to identify the product with the producer.
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A trademark used intrastate
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is protected under state common law
to be protected in interstate use, the trademark must be registered with the U.S. Patent and Trademark Office (USPTO) under the Lanham Act of 1947.
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Once the trademark has been registered, the registration must be renewed....
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between the fifth and sixth years. After that renewal, the mark holder must renew every 10 years. (If the mark was initially registered before 1990, however, renewal is necessary only every 20 years.)
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To register a mark with the USPTO
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the holder must submit a drawing of it and indicate when it was first used in interstate commerce and how it is used. The USPTO conducts an investigation to verify those facts and will register a trademark as long as it is not generic, descriptive, immoral, deceptive, the name of a person…
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Trademark dilution
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The use of distinctive or famous trademark, such as "McDonald's," in a manner that diminishes the value of the mark.
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Two key differences between trademark dilution and trademark infringement are that...
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(1) dilution additionally requires that the mark be famous and (2) dilution does not require a showing of consumer confusion, as required by infringement.
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Trademark infringement
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tying arrangement
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Illegal agreement in which the sale of one product is tied to the sale of another.
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Types of Marks?
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Service, Product trademark, Collective, and Certification Mark.
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Service Mark
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A mark used in conjunction with a service, such as the name "AT&T" painted on a vehicle that provides repair services for AT&T phone users.
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Product trademark
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A mark affixed to a good, its packaging, or its labeling, such as the Nike "Swoosh."
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Collective Mark
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A mark identifying the producers as belonging to a larger group, such as a trade union
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Certification Mark
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A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services
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Two key differences between trademark dilution and trademark infringement are?
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1) Dilution additionally requires that the mark be famous and 2) dilution does not require a showing of consumer confusion, as required by infringement.
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No Electronic Theft Act
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which makes it illegal for a person not only to infringe a copyright for commercial purposes or financial gain but also to reproduce or distribute, for no financial gain, the copyrighted work of another.
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Digital Millennium Copyright Act (DMCA).
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The main provisions of the act make it illegal to circumvent the encryption and other antipiracy technology that protects commercial software and outlaw the manufacture, sale, or distribution of encryption-breaking devices that can be used to illegally copy software
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THE BERNE CONVENTION OF 1886
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The national treatment principle
The nonconditional protection principle
The protection independent of protection in the country of origin principle
The common rules principle
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The national treatment principle
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requires that each member nation protect artists of all signatory nations equally.
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The nonconditional protection principle
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requires that protection not be conditioned on the use of formalities, although the country of origin may require registration or a similar formality.
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The protection independent of protection in the country of origin principle
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allows nationals of nonsignatory countries to protect works if they are created in a member country.
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The common rules principle
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establishes minimum standards for granting copyrights that all nations must meet.
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The primary way the UCC differs from the Berne Convention
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is that the UCC allows members to establish formalities for protection and make exceptions to common rules as long as they are not inconsistent with the essence of the treaty. The UCC also does not require signatory countries to protect author's rights.
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LEGS 3010: CHAPTER 12