Intellectual

Property
Patents, Trademarks and
Copyrights

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

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 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
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5
 Patent Laws
Constitution of the United States gives
Congress the power to enact laws
relating to patents, in Article I, section 8,
which reads
Congress shall have power . . . to promote the
progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive
right to their respective writings and discoveries"

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 Patent Laws
Specifies the subject matter for which a
patent may be obtained and the conditions
for patentability
Establishes the Patent and Trademark
Office (PTO) to administer the law relating
to the granting of patents, and contains
various other provisions relating to
patents.

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 Patentability
(What may be patented?)

Statutesays, "any person who

invents any new and useful
process, machine, manufacture,
or composition of matter, or any
new and useful improvement
thereof"

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 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
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 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
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 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

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 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

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 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

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 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!!)

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 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
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 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

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 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

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 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

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 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)
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 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

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 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

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 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

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 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

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 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
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 "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

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 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

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 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

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 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

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 Scope of Copyright Protection

Literary works Choreography

Musical works Motion pictures
Including lyrics Pictorial, graphic,
Dramatic works sculptoral works
Including music Sound recordings
Pantomines Architectural works
MP-3 Music (Napster)

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 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
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 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

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 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)

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 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.

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