Chapter 7 Intellectual Property and Cyber Piracy 25
Chapter 7 Intellectual Property and Cyber Piracy 25 -1
Introduction to Intellectual Property and Cyber Piracy § Federal law provides protections for intellectual property rights by means of: § Patents § Copyrights § Trademarks Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -2
Trade Secret § Trade secrets § Product formula § Pattern § Design § Compilation of data § Customer list or other business secret § Uniform Trade Secrets Act: Gives statutory protection to trade secrets Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -3
Trade Secret § Lawsuits for misappropriation – brought against anyone who steals a trade secret § Defendant must have obtained the trade secret through unlawful means § Discovery of trade secret by reverse engineering is lawful § A trade secret unprotected by the owner is not subject to legal protection Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -4
Trade Secret § Civil Trade Secret Law: Misappropriation of a trade secret § A successful civil plaintiff can: § Recover profits made by offender § Recover damages § Obtain injunction prohibiting offender from divulging trade secret Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -5
Trade Secret § 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 that the act would cause injury to the owner of the trade secret § Includes computer espionage § Severe criminal penalties Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -6
Patent § A grant by the federal government upon 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; no state patent laws Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -7
Patent § Subject matter that can be patented § 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 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -8
Patent § Requirements for obtaining a patent § An invention must be: § Novel § Useful § Nonobvious § Abstractions and scientific principles cannot be patented unless they are part of the tangible environment Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -9
Case 7. 1: U. S. Supreme Court Patent § Case § Bilski v. Kappos, Director, Patent and Trademark Office § 130 S. Ct. 3218, 177 L. Ed. 2 d 792, Web 2010 U. S. Lexis 5521 (2010) § Supreme Court of the United States § Issue § Is the petitioners’ claimed invention patentable? Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -10
Patent § Patent period § Utility patents – twenty years § Design patents – fourteen years § Patent term begins to run from the date the patent application is filed § The U. S. follows “first-to-invent” rule § The invention or design enters the public domain after patent period expires Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -11
Patent § One-year “on sale” doctrine § Public use doctrine § Patents will not be granted if an invention was in the public domain for one year prior to application filing Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -12
Patent § Provisional patent application § Filed by the inventor to obtain three months to prepare a final patent application § American Inventors Protection Act provides provisional patent application Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -13
Patent § Patent infringement § Occurs when someone makes unauthorized use of a patent § Plaintiff may recover: § Money damages equal to royalty rate § Other damages caused by the infringement § Order for destruction of infringing items § Injunction against infringer § Treble damages for intentional infringement Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -14
Copyright § Copyright Revision Act of 1976 § Establishes the requirements for obtaining a copyright § Protects copyrighted works from infringement § Only tangible writings are subject to copyright registration and protection § Federal copyright law is exclusive § Copyright can be sold or licensed to others Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -15
Copyright § Registration of copyrights § Must be an original work § Registered with U. S. Copyright Office § Registration § Permissive § Voluntary § Done at any time during term of copyright § Registration permits a holder to obtain statutory damages for copyright infringement § Not required to use © or word “copyright” Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -16
Copyright § Copyright period § Sonny Bono Copyright Term Extension Act § Individuals are granted copyright protection for their lifetime plus seventy years § Copyrights owned by businesses are protected for the shorter of either: § 120 years from the year of creation § 95 years from the year of first publication Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -17
Copyright § 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 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -18
Copyright § Fair use doctrine § Permits certain limited unauthorized use of copyrighted materials § No electronic theft act § Makes it a crime for a person to willfully infringe on a copyright § Digital Millennium Copyright Act § Makes it a crime to circumvent encryption technology Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -19
Trademark § 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 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -20
Trademark § Lanham (Trademark) Act § Protects the owner’s investment and goodwill in a mark § Prevents consumers from being confused as to the origin of goods and services Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -21
Trademark § Registration of a mark § Mark may be registered if it has been used in commerce § Can be registered six months prior to use § Mark is lost if not used within six months § Mark may be opposed by third parties § The use of the symbol ® is not mandatory Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -22
Trademark § Types of marks § § Trademark Service Mark Certification mark Collective membership mark Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -23
Trademark § 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 U. S. PTO Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -24
Trademark § Distinctiveness or secondary meaning § A mark must be distinctive § A unique word or design § Have acquired a secondary meaning § An ordinary term becomes a brand name Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -25
Trademark § Trademark infringement: Unauthorized use of a 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 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -26
Case 7. 2: Trademark Infringement § Case § Intel Corporation v. Intelsys Software, LLC § Web 2009 U. S. Dist. Lexis 14761 (2009) § United States District Court for the Northern District of California § Issue § Is there trademark infringement that warrants the issuance of a permanent injunction against Intelsys? Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -27
Trademark § Generic names § Term for 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 Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -28
Trademark § Diluting, blurring, or tarnishing trademarks § Federal Dilution Act of 1995 § Protects famous marks from dilution § Use by other party is actionable if: § It is commercial § It causes dilution of distinctive quality of mark § Types of dilution § Blurring § Tarnishment Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -29
Trademark § Trademark Dilution Revision Act § A dilution plaintiff does not need to show that it has suffered actual harm § It only needs to show that there would be the likelihood of dilution Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -30
Case 7. 3: Dilution of a Trademark § Case § V Secret Catalogue, Inc. and Victoria’s Secret Stores, Inc. v. Moseley § 605 F. 3 d 382, Web 2010 U. S. App. Lexis 10150 (2010) § United States Court of Appeals for the Sixth Circuit Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -31
Case 7. 3: Dilution of a Trademark § 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? Copyright © 2013 Pearson Education, Inc. Publishing as Prentice Hall. 7 -32
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