Chapter 15 Patents Trademarks and Copyrights 1 Types

Chapter: 15 Patents, Trademarks and Copyrights 1

Types of Property • Real • Land • Personal • Cars, jewelry, clothing • Easements • Non-corporal interest in real property • Railroads, utilities • Intellectual • Patents, copyrights and trademarks 2

Patents • Grant of a property right to the inventor • Issued by the Patent and Trademark Office • Term of a new patent is 20 years from the date on which the application for the patent was filed in the United States • US patent grants are effective only within the US, US territories, and US possessions. 3

Patents • The right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States • Not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention 4

Patentability (What may be patented? ) • Statute says, "any person who invents any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" 5

Patentability • Process: • Process, act or method, and primarily includes industrial or technical processes • Machine: • Self explanatory • Manufacture: • Articles which are made, including all manufactured articles • Composition of Matter • chemical compositions and may include mixtures of ingredients as well as new chemical compound 6

Conditions of Patentability • Utility • subject matter has a useful purpose and also includes operativeness • Invention must "work" to be useful • Novelty • Must not be known or used by others in this country • Or patented or described in a printed publication in this or a foreign country 7

Conditions of Patentability • Non-obviousness • The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention • Three leg stool 8

Patent and Trademark Office (PTO) • Issue patents on behalf of the Government • Headed by Commissioner of Patents and Trademarks • Part of Department of Commerce • Administers the patent laws as they relate to the granting of patents for inventions • Examines applications for patents 9

PTO • Publishes issued patents and various publications concerning patents • Similar functions are performed with respect to the registration of trademarks • No jurisdiction over questions of infringement and the enforcement of patents • Divided among a number of examining groups, each group having jurisdiction over certain assigned fields of technology 10

Patent Application • Application = written document which comprises a specification (description and claims), and an oath or declaration • Drawing or reduction to practice • Filing fee • Filing date of an application for patent determines priority (first to file wins!!) 11

Provisional Patent Application • Designed to provide a lower cost first patent filing in the United States • Establish an early effective filing date in a patent application • Permits the term “Patent Pending” • Applicant would then have up to twelve months to file a non-provisional application for patent 12

Patentability • Laws of nature, physical phenomena and abstract ideas are not patentable subject matter • Cannot obtained a patent for a mere idea or suggestion • Reduction to Practice of the actual machine or other subject matter for which a patent is sought is required 13

Design Patents • Any new and nonobvious ornamental design for an article of manufacture • Protects only the appearance of an article, not its structural or functional features • Design patent has a term of 14 years from grant • Proceedings relating to granting of design patents are the same as other patents 14

Plant Patents • Any newly discovered and asexually reproduced, distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state • same parts as other applications with the addition of a plant color coding sheet 15

Patent Infringement • Unauthorized making, using, offering for sale or selling any patented invention within the United States • Patentee may sue for relief in the appropriate Federal court where remedies include: • injunction to prevent the continuation of the infringement • Money damages because of the infringement • Appeal to the Court of Appeals for the Federal Circuit, then US Supreme Court (writ of certiorari) 16

Trademarks / Servicemarks • Word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others • Servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product 17

Trademarks • Used to prevent others from using a confusingly similar mark • Not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark • May be registered with the Patent and Trademark Office 18

Trademark Registration • Trademark rights established by: • First to use the "mark" • First to file application with PTO • Federal registration not required but has advantages • Registered owner can use mark nationwide • Registration granted for 10 years • renewable for another 10 19

Trademark Registration • PTO is responsible for the federal registration of trademarks • PTO assigns it a serial number and sends the applicant a receipt about two months after filing • Examining attorney at the PTO reviews the application and determines whether the mark may be registered 20

Trademark Registration • Examining attorney will approve the mark for publication in the Official Gazette • PTO sends Notice of Publication to the applicant • Opportunity for public opposition • Certificate of Registration 12 weeks after publication 21

"TM", "SM", "®" • Use of TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim • Prior registration with PTO not required • Registration symbol, ®, may only be used when the mark is registered in the PTO 22

Copyrights • Protects the form of expression rather than the subject matter of the writing • Copyrights are registered by the Copyright Office of the Library of Congress • Duration is life + 70 years • Title 17 U. S. Code 23

Copyrights • Form of protection provided to the authors of “original works of authorship" • Including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished • Gives author and authorized other exclusive rights 24

Copyright Protection Author and Agent have exclusive rights to: 1. Reproduce the copyrighted work 2. Prepare derivative works 3. Distribute copies or phonorecords of the copyrighted work, 4. Perform the copyrighted work publicly 1. Includes digital audio transmission (Napster) 5. Display the copyrighted work publicly 25

Scope of Copyright Protection • Literary works • Musical works • Including lyrics • Dramatic works • Including music • Pantomines • MP-3 Music (Napster) • Choreography • Motion pictures • Pictorial, graphic, sculptoral works • Sound recordings • Architectural works 26

Scope of Copyright Protection • Must be "fixed in a tangible medium of expression" to be protected. • Not protected: • • Unrecorded choreography Slogans, short names, titles, familiar symbols Ideas, procedures, methods, systems, principles Information that is "common property" • Calendars, rulers, tape measures, public lists 27

Copyright Registration • Registration not require to secure copyright • Since 1978 Copyright protection is obtained automatically when the work is created, fixed in tangible medium of expression and published (distribution in public domain) • Gives right to defend copyright • Copyright registration has advantages 28

Copyright Registration • Legal formality intended to make a public record of the basic facts of a particular copyright • Not a condition of copyright protection • Registration establishes a public record of the copyright claim • Required before an infringement suit may be filed in court (Jurisdictional prerequisite) 29

Copyright Notice • Notice of Copyright • Symbol © • Word "copyright" • Abbreviation "Copr. " • Example: © 2000 John Doe • Sound recording require symbol, year first publication and name of owner • Example: (P) 2001 A. B. C. Records Inc. 30