our assignment is to answer the following questions regarding information learned in Chapter 7. As a guideline, your answer to each question should be between 50-150 (approximately). Answer the questions in your own words, using complete sentences, and paying attention to spelling, punctuation, and grammar. Submit your answers as a Word document.
1. Is intellectual property easier or more difficult to steal than other forms of property? Why?
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2. Explain the Economic Espionage Act and its importance in combating cyber piracy.
3. Explain the process and steps of copyright registration.
4. Explain what a generic name is with reference to trademarks.
5. Describe and explain trademark dilution.
business lawShort answer today
Business Law
Tenth Edition
Chapter 7
Intellectual Property and Information Technology
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Learning Objectives
7.1 Define intellectual property and list the types of intellectual property.
7.2 Define trade secret and describe the misappropriation of a trade secret.
7.3 Describe how an invention can be patented and the penalties for patent infringement.
7.4 Describe the items that can be copyrighted and describe the penalties for copyright infringement.
7.5 Define trademark and service mark and describe the penalties for trademark infringement.
7.6 Define dilution and describe the forms of dilution of a trademark.
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Intellectual Property
Property that is developed through an intellectual and creative process
Falls into a category of property known as intangible rights
Includes:
Trade secrets
Patents
Copyrights
Trademarks
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Trade Secret (1 of 5)
Trade secrets can be:
Product formula
Pattern
Design
Compilation of data
Customer list or other business secret
Uniform Trade Secrets Act: Adopted by states to give statutory protection to trade secrets
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Trade Secret (2 of 5)
State unfair competition laws allow the owner of a trade secret to bring a lawsuit for misappropriation against anyone who steals a trade secret
Defendant must have obtained the trade secret through unlawful means
A trade secret unprotected by the owner is not subject to legal protection
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Trade Secret (3 of 5)
Reverse engineering: Taking apart and examining a rival’s product or re-creating a secret recipe
Competitor who has reverse engineered a trade secret can use the trade secret but not the trademarked name used by the original creator
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Trade Secret (4 of 5)
Misappropriation of a trade secret
Owner of a trade secret can bring a civil lawsuit against anyone who has misappropriated a trade secret through unlawful means
A successful civil plaintiff can:
Recover profits made by offender
Recover damages
Obtain injunction prohibiting offender from divulging or using the trade secret
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Trade Secret (5 of 5)
Economic Espionage Act
Makes it a federal crime for any person:
To convert a trade secret to his or her benefit or for the benefit of others
Performing the above, knowing or intending to cause injury, to the owner of the trade secret
Important weapon in addressing computer and internet espionage
Provides severe criminal penalties
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Patent (1 of 6)
A grant by the federal government to the inventor of an invention for the exclusive right to use, sell, or license the invention for a limited amount of time
Intended to provide incentive for inventors to make their inventions public
Protects patented inventions from infringement
Federal patent law is exclusive
There are no state patent laws
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Patent (2 of 6)
Federal Patent Statute of 1952
Establishes the requirements for obtaining a patent and protects patented inventions from infringement
U.S. Patent and Trademark Office (PTO)
Evaluates patent application and grants more than 300,000 per year
U.S. Court of Appeals for the Federal Circuit
Hears appeals from the Board of Patent Appeals and Interferences and federal court concerning patent issues
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Patent (3 of 6)
Patent application
Must be filed with the PTO in Washington DC
Must contain a written description of the invention
PTO must make a decision whether to grant a patent within three years from the date of filing
PTO can grant priority to patent applications for products, processes, or technologies
Provisional application: Application that an inventor may file with the PTO to obtain 3 months to prepare a final patent application
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Patent (4 of 6)
Prior art
Patent may be denied if subject matter appeared in prior art, which can be a reference, description, or event in the past that shows the idea is not new
Patent Trial and Appeal Board
Reviews adverse decisions by patent examiners and conducts other patent challenge proceedings
Patent number
Number assigned to invention when patent is granted
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Patent (5 of 6)
Subject matters that can be patented are:
Machines
Processes
Compositions of matter
Improvements to existing machines, processes, or compositions of matter
Designs for an article of manufacture
Asexually reproduced plants
Living material invented by a person
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Patent (6 of 6)
Not patentable subject matter: Laws of nature, abstract ideas, occurring substances, mathematical formulas, and scientific principles
Requirements for obtaining a patent
Patentable subject matter
Novel
Useful
Nonobvious
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Case 7.1: Patent
Case
Association for Molecular Pathology v. Myriad Genetics, Inc.
133 S.Ct. 2107 (2013)
Supreme Court of the United States
Issue
Is a naturally occurring segment of DNA patent eligible?
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Patent Period
Leahy-Smith America Invents Act: Federal statute that significantly amended federal patent law
Leahy-Smith created a first-to-file rule:
First party to file a patent on an invention receives the patent
Before the Act, there was a first-to-invent rule
Utility patents – Twenty years
After twenty years, the invention enters the public domain
Patent term begins to run from the date the patent application is filed
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Patent Infringement
Occurs when someone makes unauthorized use of another’s patent
Plaintiff may recover:
Money damages equal to reasonable royalty rate
Other damages caused by the infringement
Order for destruction of infringing articles
Injunction against infringer
Treble damages if infringement was intentional
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Design Patent
Patent obtained for the ornamental non-functional design of an item
Valid for 14 years
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Case 7.2: Patent
Case
Samsung Electronics Co., Ltd. V. Apple Inc.
137 S.Ct. 429 (2016)
Supreme Court of the United States
Issue
When determining damages for the infringement of design patents of products comprised of many components, must the court award as damages the entire profits made from the sale of the product or partial damages relating to only the infringing components?
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Copyright (1 of 4)
Legal right that gives the author of qualifying subject matter exclusive right to publish, produce, sell, license, and distribute the work
Copyright Revision Act of 1976
Establishes the requirements for obtaining a copyright
Protects copyrighted works from infringement
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Requirements for a Valid Copyright
Must be a tangible writing
Writing is defined broadly and can include
Books, lectures, slides, greeting cards, pictures, etc.
Must be affixed to a tangible (permanent) medium
Must be original
Cannot copy someone else’s creative work and get a copyright
As soon as you affix your original copyrightable material to a tangible medium, you have a copyright!
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Copyright Registration
Berne convention: An international copyright treaty that eliminated the need to use © or word copyright on a copyrighted work
Can register copyrighted work with U.S. Copyright Office
Registration is:
Permissive
Voluntary
Done at any time during term of copyright
Registration permits a holder to obtain statutory damages for copyright infringement
Registration allows you to sue for copyright infringement
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Case 7.3: Copyright
Case
Star Athletica, L.L.C. v. Varsity Brands, Inc.
137 S.Ct. 1002 (2017)
Supreme Court of the United States
Issue
Are Varsity’s designs and graphics on its cheerleading uniforms protected by copyright law?
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Copyright Period
Copyright Term Extension Act of 1998: Individuals are granted copyright protection for their lifetime plus seventy years
Copyrights owned by businesses are protected for 120 years from the year of creation or 95 years from the year of first publication
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Copyright (2 of 4)
Copyright infringement
Occurs when a party copies a substantial and material part of the plaintiff’s copyrighted work without permission
Successful plaintiff may recover:
Profit made by the defendant from the infringement
Damages suffered by the plaintiff
Order requiring impoundment and destruction
Injunction preventing future infringement
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Case 7.4: Copyright Infringement
Case
Broadcast Music, Inc. v. McDade & Sons, Inc.
928 F.Supp.2d 1120 (2013)
United States District Court for Arizona
Issue
Are the defendants liable for trademark infringement?
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Copyright (3 of 4)
Defense to Copyright Infringement
Fair Use Doctrine: Permits certain limited unauthorized use of copyrighted materials
The following uses are protected:
Quote for review, criticism, or scholarly work
Use in a parody or satire
Brief quotation in a news report
Reproduction by a teacher or student of a small part of the work to illustrate a lesson
Incidental reproduction of a work in a legislative or judicial proceeding
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Copyright (4 of 4)
No Electronic Theft Act (NET Act)
Willful infringement on a copyright is a crime
Makes it a federal crime to reproduce copyrighted electronic works
Digital Millennium Copyright Act
Prohibits unauthorized access to copyrighted digital works by circumventing the wrapper
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Trademark (1 of 8)
Any one of the following used to identify and distinguish goods of a manufacturer or seller or services of a provider from others:
Trade name
Symbol
Word
Logo
Design
Device
Lanham (Trademark) Act
Federal law that protects the owner’s investment and goodwill in a mark and prevents consumer confusion
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Trademark (2 of 8)
Registration of a mark
Mark may be registered with PTO in Washington DC if it has been used in commerce
Can be registered six months prior to use
Right to register a mark is lost if not used in commerce within six months
Mark may be opposed by third parties
®: Symbol designating marks registered with the U.S. Patent and Trademark Office
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Trademark (3 of 8)
TM: Symbol designating an owner’s legal claim to an unregistered mark associated with a product
SM: Symbol designating an owner’s legal claim to an unregistered mark associated with a service
Types of marks:
Trademark
Service Mark
Certification mark
Collective membership mark
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Trademark (4 of 8)
Distinctiveness or secondary meaning
A mark must be distinctive
Word or design that is unique
Mark has acquired a secondary meaning
An ordinary term becomes a brand name
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Trademark (5 of 8)
Marks that cannot be registered:
Flag or coat of arms of the United States, any state, municipality, or foreign nation
Marks that are immoral or scandalous
Geographical names standing alone
Surnames standing alone
Any mark that resembles a mark already registered with the federal PTO
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Trademark (6 of 8)
Trademark infringement: Unauthorized use of another’s trademark
Owner must prove that:
Defendant infringed the plaintiff’s mark by using it in an unauthorized manner
Use is likely to cause confusion, mistake, or deception of the public on the origin of goods or services
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Trademark (7 of 8)
Abandonment of a Mark
If a holder of a mark fails to use or continue to use a mark in commerce, the holder could be at risk of abandonment
Presumption of abandonment, if there is nonuse for 3 consecutive years
Generic name
A mark that has become a common term for a product line or type of service and therefore has lost its trademark protection
Name becomes descriptive rather than distinctive
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Dilution
Federal Trademark Dilution Act of 1995: Protects famous marks from dilution, erosion, blurring, or tarnishing
Use by other party is actionable if:
It is commercial
It causes dilution of distinctive quality of the mark
Types of dilution
Blurring
Tarnishment
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Trademark (8 of 8)
Trademark Dilution Revision Act
A dilution plaintiff does not need to show that it has suffered actual harm
Enough to show there is a likelihood of dilution
Fundamental requirements that the holder of the senior mark must prove:
Mark is famous
Use by the other party is commercial
Use by another causes a likelihood of dilution
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Case 7.6: Dilution of a Trademark
Case
V Secret Catalogue, Inc. and Victoria’s Secret Stores, Inc. v. Moseley
605 F.3d 382 (2010)
United States Court of Appeals for the Sixth Circuit
Issue
Is there tarnishment of the Victoria’s Secret senior mark by the Moseleys’ use of the junior marks Victor’s Secret and Victor’s Little Secret?
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Copyright
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