Business Law Assign 2 (Need Done In 6 Hours)!!!!

cam15

cheeseman_blaw10e_071.pptx

Home >Business & Finance homework help >Business Law Assign 2 (Need Done In 6 Hours)!!!!

Business Law

Tenth Edition

Chapter 7

Intellectual Property and Information Technology

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.

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

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

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

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

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

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

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

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

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

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

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

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

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?

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

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

Design Patent

Patent obtained for the ornamental non-functional design of an item

Valid for 14 years

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?

Legal right that gives the author of qualifying subject matter exclusive right to publish, produce, sell, license, and distribute the work

Establishes the requirements for obtaining a copyright

Protects copyrighted works from infringement

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!

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

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?

Copyrights owned by businesses are protected for 120 years from the year of creation or 95 years from the year of first publication

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

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?

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

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

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

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

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

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

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

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

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

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

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

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?