"Intellectual Property: A Copyrighted Point of View"© by
JD Daniels, 2001-2007
part of these notes are thanks to my wife Kathryn Tschopik, a business litigation
attorney
Legally, property is something you own, and have rights to. Someone can inherit your property. An example of something that is NOT property: your drivers license. Intellectual property is intangible: patents, copyrights, trademarks, and trade secrets. Your rights to intellectual property are granted by government statute, and may have limited duration (or not: trademarks, like the one for Coca Cola, can be enforced as long as the Coca Cola company is in business. Another type of property with unlimited duration of ownership: tangible property, like the clothes on your back.)
IP Course on the internet:
http://www.ipwatchdog.com
"The purpose behind US trademark law is to protect consumers."
Copyright: handled by the Library of Congress.
Copyrights for music: lyrics and music. Infringement if you play the
music for commercial purposes.
Length of copyrights: As far back as the Disney cartoons of the 1930's
go...
We shall not cease from exploration
and the end of all our exploring
will be to arrive where we started and
know the place for the first time.
cost me $50 to the estate of T.S. Eliot when I placed at the end of a textbook,
Digital Design from Zero to One I published in 1996. Eliot published
the lines in the 1920's...part of The Wasteland?
Patents
Legally, a patent is the right to exclude others from making and selling
your invention. Really? That's all? Take a hypothetical example: You invent
something you don't like, such as a cell phone that can take pictures. You don't
make any such phone and you refuse to license anyone else to, therefore no one
can infringe on your annoying invention and make picture-taking cell phones.
Another example: You patent a design for a bridge. You can't afford to build
the bridge yourself, but if some jurisdiction wants to use your design, it will
have to license it from you, even if it is a branch of the government.
A patent consists a description of an invention, and a series of legal claims.
“Take my word for it.” In the world of patent law, this adage holds
little weight. The first person to invent an idea—as opposed to the
first person to file a patent—is the legal inventor. MIT
site
Cost of filing a patent: Usually borne by your company.
range: $1000 - $100,000 (for international rights)
Filing a patent: You can learn about the process of preparing for and filing
a patent at
http://www.uspto.gov/web/offices/pac/doc/general/index.html
where you can find that:
Generally, the term of a new patent is 20 years from the date on which
the application for the patent was filed in the United States.
another helpful site:
http://www.gigalaw.com/articles/patent-basics.html
Priority (First-to-File v. First-to-Invent) US vs Europe...
Novelty: is it obvious?
If an inventor were to circulate a written description of his or her invention
at a conference or other presentation, this would likely be considered a printed
publication and may ultimately prevent patenting. from IPWatchDog
You the inventor also need to disclose prior art in your application, pointing out how your invention differs.
Notice that when your patent is granted, it becomes public knowledge, unlike a trade secret.
Example of an expired patent: From Fall River MA, 100 years ago, a design for the base of a crutch to be shaped like the runner of a rocking chair. Can someone find the patent number?!
Claims: Legally, claims are key to protecting your patent. Beyond the description of the device, are the claims over what realm of technology the invention covers... sometimes written with the help of a patent attorney.
3 kinds of patents: Utility, Design and Plant patents. Yes, like flower plant
type of patents.
Design patents can be granted to anyone who invents a new, original, and
ornamental design for an article of manufacture. Example of work
that could be qualify for design patent: textile
design
Patenting scientific facts? See
Michael Crichton NYT op-ed piece in 2006. Yes,
he's the Jurassic Park author...
on patenting of biological material:
Science
306: 1295-97, Koo et. al, on IP of plants (requires Acrobat Reader to
be installed, and access to Science website) first
4 paragraphs
The Patent Office, and its examiners, have discretion as to whether or not a patent should be granted.
Patent applications are an historical record of technology.
Search for patents at this website:
http://www.delphion.com/simple/
and see
http://www.msoe.edu/library/patent_searching/patent_basic_searching.htm
What's wrong with the US patent system?
See article by Jaffe and Lerner, in IEEE Spectrum
Dec 2004, p. 38, "Patent Prescription"
review: 3 suggestions:
1.
Create incentives and opportunities for parties to challenge the novelty and
nonobviousness of an invention before the PTO grants a patent.
2. Provide multiple levels of application review, with examiners devoting successively more time and effort as an application proceeds to higher levels. The goal would be to avoid wasting money to meticulously examine unimportant patents, while taking sufficient care to avoid mistakes where the stakes are high.
3.
In cases involving claims of patent invalidity based on the existence of prior
art—that is, previously issued patents or public disclosures covering the invention
at issue—replace juries with judges who could call on experts, called special
masters, for guidance. The change would give parties threatened by invalid patents
a better opportunity to make their cases to the court.
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Most patents are, and always will be, worthless and unimportant. This is not a feature
of the patent office; it is a feature of the innovation process. The significance
of a new idea usually cannot be known when it is first developed, because that significance
depends on subsequent developments, both technological and economic. The upshot
is that many good ideas are patented that never actually turn out to be worth anything.
The right to a jury of one's peers is a venerated concept in Anglo-American law. But there is no real sense in which a patent jury is, in fact, a jury of peers. If we left patent cases to judges rather than to juries, we would still not have scientists and engineers, the true peers of the inventor, deciding the case.
Patenting methods to lower your IRS tax burden...
International: Is there any IP in China?
http://www.wipo.org
and from WSJ Nov 22, 2004, a case of corporate identity theft, from China:
Abro Story
Systematic Intellectual Property Theft in China:
From New York Times Magazine, Sunday Jan 9, 2005, "Manufaketure",
by Ted C. Fishman
Thesis: China generates almost no intellectual property, only "real"
property in the form of Christmas toys, cheap clothing, etc. The US on the other
hand generates a great deal of the world's IP, and is thus susceptible to its
theft by China.
1/24/06 WSJ: Pfizer Battles Fakes in China
Pfizer and other drug makers are fighting a tide of fake medication that has
China as its source, and the companies' success in stopping the problem depends
on the ability to prod Beijing officials without alienating them.
May 12, 2005: "The Pirate Kingdom", NYT Op Ed.
Fake Books in China (LA Times, April 25, 2005)
April 19, 2005: visit by Naeem Zafar, '82, from Silicon Valley: His company decided to hold a training session in Shanghai, China, because they had sold 40 licenses to companies in Shanghai (design automation software). When the training session opened at a hotel, 4000 people showed up!
The Third Shift in China, for New
Balance from FORTUNE,
China, Getting Rich First, by Duncan Hewitt (2008).
Patents and the courts.
Perhaps more compelling than filing for a patent (which may bring a bonus, and
personal recognition)
is managing a patent on a successful invention, one that makes money. In such
a case you invariably
enter the legal world, of lawyers for plaintiffs and defendants arguing the
fine points of patent law.
link to Frazier case
Infringement of a patent is with respect to its claims, interpreted
by a judge.
Normally an "infringer" is sent a demand letter from a lawyer, requesting
royalties.
If the demand letter is ignored, a lawsuit in Federal Court may follow.
If the decision is appealed, it is always to the Federal Circuit Court.
In patent cases now, all decisions are bench decisions, not jury trials.
--------------------------- --------------------
Amy Mendel BME '01, at Wolf Greenfield, in Boston.
Trademarks, Service Marks
The case of Mickey Mouse's ears
"Victor's Little Secret" vs Victoria's Secret
Cybersquatting
the act of registering a popular Internet address...
martcanadasucks.com", "wal-martcanadasucks.com",
"walmartuksucks.com", "walmartpuertorico.com" and
"walmartpuertoricosucks.com" within the meaning of paragraph 4(a)
of the Policy because the
Respondent offered to sell the "sucks" domain names to Walmart.
The decision states:
The Panel stresses that this decision does
not address legitimate freedom of expression sites established by parties critical
of trademark holders. The Panel is aware that there are numerous websites identified
by "-sucks" formative domain names, including "walmartsucks.com".
The Panel anticipates that Respondent (and others) may choose to characterize
this decision as seeking to stifle freedom of expression on the Internet by
ordering the transfer of "-sucks" formative names. Certain trademark
holders might choose to characterize this decision as supporting action against
"-sucks" formative domain names in other contexts. The Panel intends
this decision to serve neither of these aims. This decision is directed to a
blatant case of abuse of the domain name registration process -- no more, no
less.
The case of Microsoft, Windows
vs Lindows
Copyrights
plagiarism compared to copyright violation
http://www.strategicinc.org/tutorial_copyright.html
Trade Secrets
Likely to be a process, not a physical product, "turning
straw into gold"
need to prove outright theft.
the recipe for Coca Cola...
Confidentiality and non-disclosure agreements.
¶ Brown University Research Foundation (help exploit research by licensing)
Review of "The Patent King",
Nicholas Varchaver, Fortune May 14, 2001
See below for legal update:
http://www.cognex.com/news/press_releases/2002/lawsuit_ruling.asp
http://www.cognex.com/news/press_releases/2002/trial.asp
http://www.cognex.com/news/press_releases/2004/Cognex_Lemelson.asp
2005: another Patent King
arises: "Patents R Us" from the NYT, May 2, 2005