Intellectual Property

 

Intellectual property includes three legal areas:

1.      Patents,

2.      Trademarks, and,

3.      Copyrights.

 

Rights of Intellectual Property Owners

An owner of intellectual property has the right to prosecute anyone infringing on his or her property.� It is a civil action.

 

The following information comes directly from Black's Law Dictionary, 6th Edition, 1990.

Infringement

Infringement is the invasion of the rights secured by patents, copyrights, and trademarks.

�         Copyright infringement is the unauthorized use of copyrighted material.� Note that there are certain factors that must be considered in copyright infringement including the "fair use" exemption.

�         Patent infringement is the unauthorized making, using, or selling for practical use, or for profit, of an invention covered by a valid claim of a patent during the life of the patent.

�         Trademark infringement is the unauthorized use, or colorable imitation of the mark already appropriated by another, on goods of a similar class.

 

Rules

The rules for patents, trademarks, and copyrights can be found in the Code of Federal Regulations (CFR) Title 37.

 

Right to Own

The right to own patents and copyrights is guaranteed by the United States Constitution.� Article I, Section 8, states "The Congress shall have Power [8] 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."

 

Trademarks are not guaranteed in the U.S. Constitution, but rather are covered under statutory law and case law.� The first trademark laws were enacted by Congress in 1870 and 1876.� These were deemed unconstitutional as they referred to state matters.� In 1881 and 1905 Congress passed statutes addressing the interstate use of trademarks.� (Information from Intellectual Property, Patents, Trademarks, and Copyright, by Arthur R. Miller and Michael H. Davis, 1990, pages 148-149.)�

 

Administration of Intellectual Property

Patents and trademarks are administered by the USPTO.� Copyrights are administered by the Copyright Office, a department of the Library of Congress.� (Information from Copyright, Cases and Materials, 5th Edition, by Robert A. Gorman and Jane C. Ginsburg, 1999.)

 

Representation of Intellectual Property Owners

One must be a lawyer to litigate in court.� Any lawyer may litigate copyright and trademark infringement cases.� Patents are different in terms of representation.

 

A patent agent may represent a patent owner when prosecuting patents before the USPTO, but may not represent a patent owner in court.� A patent lawyer must represent a patent owner in court.

 

A patent agent is a person who has either passed the USPTO patent bar, or has worked as a patent examiner in the USPTO for at least four years, and has fulfilled the necessary requirements set forth by the USPTO.� Only people with technical bachelor's degrees or equivalent are eligible to take the patent bar or to be a patent examiner.� A patent attorney has passed a state bar and has either passed the patent bar or has worked in the USPTO and has fulfilled the necessary requirements, as stated above.� Note that a lawyer who is not a patent attorney may not prosecute patent or litigate patent cases.

 

Specific Intellectual Property

 

Copyright

Copyright may be the most common form of intellectual property. Copyrights are administered by the Copyright Office, a department of the Library of Congress.� The following information comes directly from Black's Law Dictionary, 6th Edition, 1990.

 

Copyright

A copyright is a right of literary property as recognized and sanctioned by positive law.� An intangible, incorporeal right granted by statue to the author or originator of certain literary or artistic productions, whereby he is invested, for a specified period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.

 

 

Trademarks

Trademarks are handled by the U.S. Patent and Trademark Office (USPTO).� The manual used by the USPTO is the Trademark Manual of Examining Procedure.

 

The following information comes directly from the Manual of Patent Examining Procedure (MPEP), Original 7th Edition, July 1998, U.S. Department of Commerce, Patent and Trademark Office, section 608.01(v) Trademarks and Names Used in Trade.

 

Trademarks

A trademark is a word, letter, symbol, or device adopted by one manufacturer or merchant and used to identify and distinguish his or her product from those of others.� It is a proprietary word, letter, symbol, or device pointing distinctly to the product of one producer.

 

Specific Case of a Trademark Losing its Distinctive Meaning

 

A trademark is used to identity and distinguish a product from others.� Yet, when the trademark becomes part of the vernacular, it loses its status and becomes a description of the product.� Bayer Co. put a trademark on "aspirin," yet lost in Bayer Co. v. United Drug Co. (1921).� The term "aspirin" was found to have lost its distinctive meaning.

 

This is something that companies do not want to happen!� If I told you to "xerox" something, would you know what I want you to do?� Yet, "Xerox" is a trademark.� (Xerox may have lost its trademark.)

 

Band-Aid� keeps its trademark by enforcing it.� Every commercial that uses the term Band-Aid� must state "Band-Aid Brand" which keeps its trademark active.

 

 

Patents

Patents are different from both trademarks and copyright.� The following information comes directly from the Manual of Patent Examining Procedure (MPEP), Original 7th Edition, July 1998, U.S. Department of Commerce, Patent and Trademark Office, Introduction.

 

Prior to January 1, 1953, the law relating to patents consisted of various sections of the Revised Statues of 1874, derived from the Patent Act of 1870 and numerous amendatory and additional acts.� By an Act of Congress approved July 19, 1952, the patent laws were revised and codified into substantially its present form.

 

The following information comes directly from Black's Law Dictionary, 6th Edition, 1990.

 

Patent

A patent is a grant of some privilege, property, or authority, made by the government or sovereign of a country to one or more individuals.

A grant or right to exclude others from making, using or selling one's invention and includes right to license others to make, use or sell it.

 

The patent law is Title 35 of the U.S. Code.�

35 U.S.C. 1.� Establishment.

The Patent and Trademark Office shall continue as an office in the Department of Commerce, where records, books, drawings, specifications, and other papers and things pertaining to patents and to trademark registrations shall be kept and preserved, except as otherwise provided by law.

 

Other Information �Intellectual Property

 

Names Used in Trade

 

Names Used in Trade

A name used in trade is a nonproprietary name by which an article or product is known and called among traders or workers in the art, although it may not be so known by the public, generally.� Names used in trade do not point to the product of one producer, but they identify a single article or product irrespective of producer.

 

Trade Secrets

Trade Secrets are different from trademarks.� The following information comes directly from Black's Law Dictionary, 6th Edition, 1990.

 

Trade Secret

A trade secret may consist of any formula, pattern, device of compilation of information which is used in one's business, and which gives person an opportunity to obtain an advantage over competitors who do not know or use it; or, it may be a formula or a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.

A trade secret is a plan or process, tool, mechanism, or compound known only to its owner and those of his employees to whom it is necessary to confide it.� A secret formula or process not patented, but know only to certain individuals using it in compounding some article of trade having a commercial value.