basic intellectual property

8/6/2019 Basic Intellectual Property

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BASIC INTELLECTUAL PROPERTY

COMAR LAW LEGAL INFORMATION

9 0 1 M i s s i o n S t r e e t , S u i t e 1 0 5 t e l e p h o n e : 4 1 5 . 6 4 0 . 5 8 5 6 f a x : 4 1 5 . 5 1 3 . 0 4 4 5

W W W. C OMAR L AW. C OM
http://www.comarlaw.com/http://www.comarlaw.com/


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BASIC INTELLECTUAL PROPERTY

PUBLISHED AND DISTRIBUTED BY

KANDEVIN PRESSFIRST PRINTING AND DISTRIBUTION: JULY 2011

COPYRIGHT 2011 BY INDER COMAR

RELEASED UNDER CREATIVE COMMONS LICENSE: ATTRIBUTION-NONCOMMERCIAL-SHAREALIKE 3.0UNPORTED (CC BY-NC-SA 3.0)

C O M A R LAW B A S I C I N TELLEC TU A L P R O P ERTY

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ABOUT COMAR LAW

With a particular dedication to trial and appellate work, COMAR LAW provides a wide range of legal services to individuals andcompanies, especially in areas of employment, intellectualproperty, civil rights and international law. COMAR LAW alsohelps clients with issues pertaining to public policy. For moreinformation on services provided by COMAR LAW , please visitwww.comarlaw.com .

Please note that the following information is NOT legal advice, and should NOT andshould NEVER be relied upon as legal advice. No attorney-client relationship is

created by reviewing this material. If you have legal questions or concerns related tothe laws of intellectual property, please consult an attorney.

This document is d istributed through a Creative Commons BY-NC-SA License whichmeans that this work may be freely shared, remixe d, tweaked, and built-upon non-commercially, so long as credit is given to the original author and any new creations arelicensed under the original terms. For more information on licensing, please see:http://creativecommons.org/licenses/by-nc-sa/3.0/ . The specic terms of the licensecan be found here: http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode.


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W H AT I S I N T E L L E CT U A L PRO PE RT Y ?

Laws protect property. A stranger cannot enter a persons home without permission, orremove personal items like a car or computer. Property laws make it possible for people toaccumulate capital, start businesses, and contribute to society.

Intellectual property is a special form of property that isproduced by the human mind. Ideas, creative works, businesssecrets and brands have no physical reality, but theynonetheless possess value.

In modern economies, intellectual property is a key driver of commerce and development. The law protects intellectualproperty because it wants to give people the incentive to

produce and monetize world-changing ideas.

Specically, the law recognizes that people who createintellectual property are entitled to certain rights, including theright to use and develop the intellectual property undermonopoly or near-monopoly conditions.

Someone who uses intellectual property without permission infringes that intellectualproperty, entitling the owner to damages or a court order preventing further use.

There are four general forms of intellectual property: patents, copyrights, trade secrets andtrademarks. We look at each in turn.

The United StatesConstitution grantsCongress the power To promote theProgress of Scienceand useful Arts, by securing for limited Times to Authors andI n v e n t o r s t h eexclusive Right tot h e i r r e s p e c t i v e W r i t i n g s a n dDiscoveries.

On March 5, 2011, the United States Court of Appeals for the Ninth Circuit ordered the shut down of the popular music sharing service Napster because of copyright infringement.Subsequently, college students the world over

were forced to nd other ways to download music.

Research in Motion Ltd. was forced to pay $612.5 million in patent infringement damages after a jury found that it willfully infringed a patent held by NTP. A court-ordered shutdown was only averted through

intervention by the United States Department of Defense.

Two Examples Of Infringement


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THE BASICS OF PATENT LAW

A patent protects an idea by giving the patent holder a monopoly over use of the idea for 20years. Anyone who wants to use the idea must receive permission (typically a license) fromthe patent holder.

Patentable ideas usually emerge from problem solving. A new type of structure, process,apparatus or method may be patentable. More classical inventions, such as innovation inengineering, medicine, or in an algorithm may also be patentable. In order to be patentable,the invention must be novel (different from other patents) and unobvious (not obviousto someone skilled in the technology).

The United States patent system is rst to invent. Thus, its a good idea to keep track of your inventions in a notebook and have each invention signed by you and a witness.

WHAT CAN I DO? WHY IS THIS IMPORTANT?

Keep an inventors notebook to record new

ideas. Date each idea, sign the bottom, and get a

witness to sign as well.

Good record-keeping of your ideas will help

establish priority should someone else claim the

same invention later in time.

Track the importance of the idea (both to you

and the market) in determining whether to le a

patent application. How much would the

competition pay to use your idea?

Bigger breakthroughs and bigger market

potential weigh in favor of securing patent

protection.

Consider monetizing your patents by licensing

the idea where appropriate.

Take advantage of the 20 year monopoly by

licensing the idea to competitors or other

interested parties.

Famous Patents

The light bulb (Patent No. 223,898) The safety razor (Patent No. 775,134) The TV (Patent No. 1,773,980)


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THE BASICS OF COPYRIGHT LAW

Copyright law protects creative expression. Books, movies, music, pictures, websites andcomputer code are all expressive works that are protected by copyright law.

Copyright law does not protect the idea behind the expression. However, copyright law isexible. Skin tattoos or the system of Bikram Yoga may hold valid copyrights under UnitedStates law (these claims have never been tested by courts).

T h e s o n g , H a p p y

B i r t h d a y To You

T h e c o d e t oa n y v e r s i o n o

M i c r o s o f t Wi n d o w s

Famous Copyrights (Reproduced For Fair UsePurposes Pursuant To 17 U.S.C. 107)

In order to receive the full benet of copyright law, authors should register their works withthe United States Copyright Ofce. Registration serves as notice that the work is protectedand entitles the author to damages between $700 to $150,000 for infringement.


Register your creative works with the United

States Copyright Ofce.

Registration puts the world on notice of your

copyright and entitles you to seek increased

penalties.

Send cease and desist letters to infringers as

soon as you nd them.

Policing your copyrights protects your work and

may entitle you to retroactive settlements. The

statute of limitations is 3 years to pursue an

infringement claim.

Consider monetizing your copyrights by

licensing derivative or display rights where

appropriate.

Collaboration with other companies can increase

brand potential and revenue.


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THE BASICS OF TRADE SECRET LAW

A trade secret is any secret possessed by your company that (1) is not known by the public,(2) is subject to efforts to maintain its secrecy, and (3) gives your company a competitive

advantage in the market. A cola formula, a proprietary algorithm, a key (secret) piece of computer code or the ingredients of a special glue or solvent are examples of trade secrets.

Trade secrets do not have to be formally registered, but their value will be lost if they losetheir secrecy. The most common way this happens is when employees leave your companyand join a competitor. Thus, it is important that you dene your trade secrets and tell youremployees not to take them if and when they leave your company.


Keep a list of proprietary information that you

consider company trade secrets.

Afrmatively dening your trade secrets will

force you to identify your critical proprietary

information.

When employees leave, give them a condential

list of your trade secrets and make them agree in

writing that they will not use those trade secrets.

Former employees are forbidden by law to use

your trade secrets with a subsequent employer.

If an employee begins using your trade secret,

seek an injunction as soon as possiblepreventing disclosure.

If you fail to seek an injunction, you risk

disclosure of your trade secret; once disclosed,the trade secret will lose all value.

T h e p r o p r i e t a r y m a n n e r i n w h i c h a T V

m a n u f a c t u r e r p r o d u c e si t s p l a s m a s c r e e n

t e l e v i s i o n s e t s

Trade Secrets Are The Secret Sauce Of A Product


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T H E BA S I CS O F T RA D E MA RK L AW

A trademark identies and differentiates your goods and services in the marketplace:

The symbol means that the mark has been registered with the United States Patent and

Trademark Ofce. Registration provides key benets, including prima facie conrmationthat the mark is valid nation-wide.

Sometimes, you might see a brand that just has TM by it, instead of . TM means thatthe mark is unregistered: maybe it was rejected for registration, is in the process of beingregistered, or has yet to be registered. Unregistered marks still have rights under thecommon law, but are not as strongly protected as a registered mark.


Mark your trademarks and slogans with TM

and your service marks with SM.

Identifying your marks gives you common law

protection over trademarks, service marks and

slogans.

Register your trademarks and service marks

with the United States Patent and Trademark

Ofce.

Registration gives notice that you are the owner

of your trade- and service marks, and also

provides greater rights in court.

Be patient (and wary) of the registration process.

Registration can take as long as two years and

your mark may end up being rejected by the

Trademark Ofce.

Famous Registered Trademarks


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