Chapter 10 legal issues Intellectual Property Law

Intellectual Property Law

• Intellectual property (IP) law protects a person's creative ideas, inventions, and innovations.
• IP laws give people ownership rights over their creative works, control over their use, and the ability to profit from them.
• IP law also prevents others from exploiting someone's creative ideas.
• The U.S. Constitution recognizes the importance of protecting IP.
• Information technology plays a role in IP issues.

The Digital Wild West and IP Law

• The term "Digital Wild West" describes the current state of the World Wide Web which has a frontier with still-unknown outer limits.
• Internet usage grew over 1,167 percent between 2000 and 2020.
• The Internet of Things (IoT) refers to devices that collect and share data over the internet.
• Intellectual property (IP) is the area of law protecting a person's creative ideas, inventions, and innovations once they are in physical form.
• Traditional legal concepts about IP ownership are applied to content on the World Wide Web.

Legal Ownership and Protecting IP

• A property interest means that an owner has certain rights to a property that a court will enforce if necessary.
• Types of property ownership:
  • Real property interest: Owning land or buildings.
  • Personal property interest: Owning physical possessions like cars, books, and silverware.
  • IP interest: Owning a creation such as art, designs, images, and inventions.
• Corporations, businesses, and governments can also own property.
• The owner of IP has certain exclusive rights that courts will enforce and can punish those who violate these rights.
• The U.S. Constitution grants Congress the power to secure exclusive rights to authors and inventors for a limited time to encourage innovation and discovery.
• The exclusive right to control how creations and inventions are used is the main purpose of IP law.
• Different laws protect different creations and literary works for different periods.
• The creator or author of a work or invention is the only person who can use or reproduce it during the protected period, allowing them to profit from their efforts.
• Federal law recognizes three types of IP:
  • Patents: To protect inventions.
  • Trademarks: To protect brands.
  • Copyrights: To protect creative works.
• Each type of IP has different ways of being demonstrated and applies to different types of creations and inventions with varying lengths of protection time, and different requirements for establishing and enforcing rights.
• Trademarks have the longest protection period, as long as the owner continues to use it in commerce.

Patents

• A patent is an IP right granted by the federal government through the U.S. Patent and Trademark Office (USPTO).
• In 2011, the America Invents Act (AIA) introduced significant changes to U.S. patent law; before March 2013, the United States followed a "first to invent” rule, but it then changed to a "first to file" system.
• Patent owners have the right to prevent others from making, using, or selling the patented invention.
• Three basic types of patents exist:
  • Utility patents for inventions and discoveries.
  • Plant patents for new varieties of plants.
  • Design patents for ornamental designs of manufactured objects.
• Utility patents are the most common type and include four main categories: machines, manufactured products, processes, and compositions of matter.
• Utility patents are granted for a 20-year term beginning on the date the patent is granted.
  • A machine is a tool or instrument that uses moving parts to complete a task.
  • Manufactured products are products without moving parts.
  • A process is a way of completing a task through a series of steps.
  • A composition of matter is a chemical compound consisting of two or more substances combined to create something new, such as new drugs.
• The second type of plant patents are granted to the inventor or discoverer of a new variety of plant, which they can reproduce asexually.
• Plant patents last for 20 years once granted.
• The third type of design patents are granted for new, original, and ornamental designs for manufactured objects that last for 14 years.
• Design patents protect the appearance of an article, whereas utility patents protect how the article works.
• Inventions or discoveries must be patentable to be protected and meet certain requirements, including being novel, useful, and non-obvious.
• Inventions must be new and different from prior art to the date of filing.
• A one-year grace period is allowed for inventions made available to the public enabling the inventor to file a patent within a year of announcing the invention first, which can be risky if another person builds and patents the invention first.
• In order to be patentable, the subject matter of an invention or discovery must also be patentable; subject matter must be "anything under the sun that is made by man”
• Utility means the invention or discovery is beneficial and actually works.
• Non-obvious means the invention or discovery is not obvious if it is not obvious to a person with ordinary skill used in the invention, nor is it sufficiently different from prior art.
• In the U.S. inventors register their patents with the USPTO which only applies to the United States and not in foreign countries, where a foreign patent is needed and where different countries have different patent laws.
• The Paris Convention for the Protection of Industrial Property (1883) fixes the filing date of patent applications internationally to when the inventor first files a patent application in their home country.
• Inventors must file applications in other countries within 12 months of the first patent application to maintain their priority.
• The United States joined the Paris Convention in 1887. The Patent Cooperation Treaty of 970 (PCT) streamlines the application process, administered by the World Intellectual Property Organization (WIPO).
• The PCT allows inventors to file for patent protection in member countries and fix the filing date internationally.
• A patent application to the USPTO to patent an invention or discovery involves the actions the USPTO must complete in order to grant a patent called patent prosecution; it can take almost 23 months to prosecute a patent application (in March 2020).
• A patent application contains:
  • Specification: The written description of the invention and how to make/use it.
  • Drawings: A visual description that helps the USPTO understand.
  • Oath: A statement that the inventor swears to its contents.
  • Filing fees: Fees based on the type of patent with possible additional fees.
• A “claim” defines the protected part of the invention.
• USPTO employees review a patent application for patentability in which an examiner either rejects the application or issues a patent.
• Patent maintenance fees are paid after the USPTO issues a patent to maintain the patent.

Infringement and Remedies

• The inventor has the exclusive right to keep others from using an invention or discovery under patent including people who make, use, or sell a substantially similar product during the patent period.
• Infringers violate IP rights and called infringers.
• The process called strict liability means that people can be held responsible for actions, even if they did not cause any harm.
• Patent cases must be done in federal court because patents are governed by federal law.
• Infringers can argue the patent is invalid or that the alleged infringer did not violate the patent.
• The infringer proves an issued patent is invalid.
• Remedies in an infringement case can include injunctive relief and damages.
• An injunction orders the infringer to stop violating the inventor's patent.

Patents vs Trade Secrets

• Patents are IP rights granted under federal law for a certain period of time to prevent the making or using of the patented invention by others.
• A trade secret protects formulas, processes, methods, and information that gives a business a competitive edge and must have economic value and be protected.
• Trade secrets is a common-law concept that is codified under federal law and by many states.
• A trade secret must:
  • Be valuable to a business and competitors.
  • Be unknown outside of the business.
  • Not be easy to duplicate.
  • Be protected and kept accessible.
• Trade secrets can be protected for an unlimited time since they are kept secret.
• There are various steps to take to enforce a trade secret.
• A person who violates a trade secret can face civil and criminal penalties.

Trademarks

• A trademark is an IP right that protects words, logos, and symbols to identify a product or service used to distinguish between different products.
• Trademarks and servicemarks are collectively called trademarks, which represent a business's commercial identity.
• In deciding how to protect a process, a business has to consider if the invention that a trade secret protects is patentable.
• Patents give greater protection against other peoples use of the method, but a trade secret can be protected longer.
• Trade secrets can be used to protect almost anything, while patents are limited to protecting inventions or discoveries that meet patentability requirements.
• Trademarks make products easily recognizable, represent goodwill, and encourage brand loyalty.
• Trademark protection is governed by federal and state laws; the main federal is the 1946 Lanham Act that provides for the federal registration of trademarks.
• Trademark protection belongs to the first person to use the trademark in commerce, which is different than patent and copyright laws.
• Federal registration will:
  • Give notice of the date of first use to the public.
  • Establish the right to sue in federal court and recover costs.
  • Limit the amount of years to challenge the trademark.
  • Allow use of the federal registration trademark.
• A person must meet use in interstate commerce and distinctiveness for trademark registration.
• A person must begin using a trademark within 6 months after USPTO approval, and the USPTO can extend this period up to 2½ years.
• The USPTO considers strong trademarks to be inherently distinctive, trademarks that unrelated to the good or service.
• The most common kind of weak trademark is a descriptive trademark, which represents the product it is describing.
• The USPTO has two trademark registration methods:
  • Principal Register for trademarks that inherently distinctive
  • Supplemental Register for trademarks that are not
• The registration period for trademarks is 10 years.
• Infringement of the trademark is violating a person's trademark rights, where the trademark owner has the right to the goods and services they use in commerce.
• There are two main types of trademark infringement cases

1. Use of a similar trademark that can confuse customers.
2. The use of a similar trademark causes dilution of value of trademark

Trademarks and Domain Names

• Internet e-commerce has created the need to protect trademarks.
• Companies often their business names or trademarks as their domain name.
• Cybersquatting is the registration of a domain name in bad faith that is trademark or trade name of another entity.
• Registering a domain name with the Internet Corporation for Assigned Names and Numbers (ICANN), coordinated through a domain name registrar who accepts registrations is a first-come, first-serve basis.
• Trademark owners have a legal right to protect their trademarks protecting their trademark names from cybersquatters
• The Anti-Cybersquatting Consumer Protection Act (ACPA) allows entities to sue others for cybersquatting for registering trademarks in bad faith with the intent to profit from registration.

Copyright

• A copyright that protects the original works of authorship is an IP right established under the U.S. Constitution, specifically federal copyright laws.
• The copyright holder has the exclusive right to do anything with the copyrighted work, including reproducing, performing, or selling it and can stop others from using their copyrighted material.
• Almost anything can be copyrighted, provided that it's an original work of authorship; blog posts, personal websites, and adverting materials are all examples of works that are copyrighted.
• There are different works that can be copyrighter
  • Literary
  • Musical
  • Dramatic
  • Pantomimes
  • Pictorial
  • Motion pictures
  • Architectural works
• Federal law grants copyright protection to an original work in any tangible medium of expression.
• The protection cannot apply to names. See link in notes
• Copyright protection will not apply to the public domain. It includes work or use from US goverment.
• Copyright protection arises with or without registration of the creation, but can still be marked with an uppercase C in an enclosed circle.
• The copyright owner can do anything with the copyrighted work, including using a legal license to allow others to work.
• For works created after January 1, 1978, a copyright lasts for the length of the author's life plus 70 years after the author's death; work for hire copyright has a protection of 95 year from work
• Copyright protection arises as soon as an original work is created; however, the author must register a work before enforcing it.
• Registering a copyright creates public record, and if its registered within 5 years it creates a presumption, or proof, that copyright can exist.
• Registration requires application, work submission, and fee.

International Copyrights

• The Berne Convention gives every party the right to express protection of right. As well as:
  • Minimum of copyright protection
  • Freedom from formalities such as notice registration
  • Protection of certain moral rights
• Copyright holders have exclusive rights in work. Because of this, authors can enforce the rights and can sue people who infringe. Because liability of is based upon strict liability because a copyright owner can hold a liability can hold an infringer in any shape

Rights To Copyright Infingement

• To show to show the original work must prove ownership of copyright, including access to the copyright work and their works must be substantially similar. This includes if it is very original.
• Remedies for copy writing range from court fees to violation fees as well as statue laws.
• A common way to defendant rights is a copyright case is to claim defendants work is orignal

Fair Use

• A copy right has a right to make is own decision. Scope of his rights includes the liberty to enforce artists to have rights and to express themselves
• The la states they can not use copyright infringement.
• These include:
  • Criticism
  • Commet
  • News reporting
  • Teaching
  • Scholarship
  • Research
• The fair use doctrine also requires that a technological use, and other forms of fair use.
• In the court of the second area court they were used. It goes on the claim that work should be fair, but it’s meant to express what is being protected.

Protecting Copyrights Online—The Digital Millennium Copyright Act (DMCA)

• The Digital Millennium Copyright Act (DMCA) helps protect copyrights in the digital world, andinsulates internet service providers (ISPs) from their customers' actions comprised of five titles.
  • I: implements two WIPO treats. There are steps to help use technology in the future.
  • II: Protects Copyrights
  • III: Protect Computer work that has been a change of copyright
  • IV: Add Pro visions
  • V: Protect ip designs for vessels Title 1 is said in this section
• WIPO treat Helps protect copyright changes The work said that members of the treats prevent and tech measures protects the copy right

The technology measures and tools are used and referred to as digital rights management.

• DRM helps protects things:
  • DMCA helps keeps protected from the access and controls
  • People cannot tamper their content
  • Selling devices that would help help others acess copyrights Second the DCM also forbids selling devices that other could acess.

Online Rights Infringement

Title 2 this allows services to prevent being help for the customers

• The first step they do is to do what others have done and follow their actions because it can contribute to them
• The action of help does not have the services. Dmca excepts OSPS. When they meet certain criteria, they may have to fill the file for proper action and protection
• An example that does not need to be protected
  • Transitions
  • Cash
  • Storage is given There still can be a protection or requirement to still protect it. Other wise the organization must develop a protection before they can terminate the process

Test your knowledge of intellectual property law. Questions cover patents, copyrights, trademarks, and trade secrets. Explore how it impacts innovation and economic growth.