What is the Fair Use Doctrine in Copyright Law?
Section 107 of the Copyright Act “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The question of fair use has been described as “the most troublesome in the whole law of copyright,” and while no definition of “fair use” has been coined that is workable in every case, the U.S. Supreme Court has noted that fair use is “traditionally defined” as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” The analysis is a mixed question of both fact and law and requires a case-by-case analysis to determine whether the use at issue is “fair use.”
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How Do I Protect Software with IP Law?
The protection of software most often involves copyrights, as the two go hand-in-hand. Since the greatest protections are afforded to federally registered copyrights, the most important steps in protecting your software are confirming ownership of the software and registering with the U.S. Copyright Office. Similarly, some software may be subject to patent protection, which requires federal registration with the United States Patent and Trademark Office. Once registered, protection of software is accomplished through standard means of IP enforcement – cease and desist letters, alternative dispute resolutions measures such as arbitration or mediation, and even federal court litigation. However, specific to software is the need to ensure that you are utilizing proper software development, licensing, and indemnity agreements as well.
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How Do I Know If My Idea Is Patentable?
For a patent to be issued, your idea must meet four conditions: (1) able to be used; (2) a clear description of how to make and use the invention; (3) new, or “novel”; and (4) “not obvious.”
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How Can I Protect My IP Internationally?
U.S.-based owners of various forms of intellectual property need to understand that U.S. laws typically do not protect against foreign infringement. The best means of protecting IP internationally is to seek formal registration in whatever countries your business operates.
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What’s the Difference Between a Design Patent and a Utility Patent?
Utility patents protect the utility or function of an invention or improvement thereof, whereas design patents protect the design or ornamental appearance of an article of manufacture.
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What’s the Difference Between a Copyright and a Trademark?
A copyright protects the tangible expression of an idea, whereas a trademark protects a particular designation of source for a particular good or service.
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What is the Difference Between a TM and R Symbol
While both refer to specific trademark rights, the TM is used to identify trademark rights that are not federally registered with the United States Patent and Trademark Office (including pending applications), while the R mark identifies a mark that is obtained federal registration with the USPTO.
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What Is Patent Troll Litigation?
Patent troll litigation is where business acquire patents not through inventorship and without the intent to use these patents, and then bring lawsuits or demands against other companies to force settlements or obtain licensing fees.
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What is a Trade Secret?
Put simply, a trade secret is information which derives independent economic value from being not generally known or readily ascertainable through proper means. It could be anything from a customer list to the highly secret formula for Coca-Cola.
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What are the Steps to Create and Protect a Trade Secret?
Unlike other forms of intellectual property, like patents or copyrights, there is no formal registration process for creating a trade secret. Instead, the act of keeping the information confidential and taking reasonable steps to safeguard it creates the applicable rights.
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What Are the Stages of Patent Prosecution?
The patent prosecution process generally involves a pre-grant stage, comprised of preparing and filing the patent application, arguing and negotiating with the USPTO, and the granting of the patent, and a post-grant stage wherein the rights afforded by the patent are maintained and enforced for the remainder of the patent period.
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What are the Elements of Patent Infringement?
There are two general elements to a patent infringement claim: (1) the plaintiff’s ownership of a valid patent; (2) infringement of the patent by the defendant.
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What are the Elements of Copyright Infringement?
There are two essential elements to a claim for copyright infringement. First, the plaintiff must prove ownership of valid copyright. Second, the plaintiff must show the defendant’s copying of constituent elements of the copyrighted work that are original.
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What are the Elements of a Trade Secret Misappropriation Claim?
The elements of a trade secret misappropriation claim are: (1) a trade secret existed; (2) the trade secret was acquired through a breach of a confidential relationship or discovered by improper means; and (3) use of the trade secret without authorization from the plaintiff.
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What are Defenses to a Trade Secret Misappropriation Claim?
Common defenses to a trade secret misappropriation claim include: refuting the trade secret status of the information for various reasons, such as claiming the information was publicly available; (2) claiming the defendant independently developed the secret; and (3) claiming the defendant acquired the information through lawful means, like reverse engineering.
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What Are Common Defenses to Copyright Infringement?
Some common defenses to a claim of copyright infringement include fair use, independent creation, and public domain.
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How Long Does Trademark Protection Last?
Since trademark rights arise out of use (as opposed to registration), trademark protections remain in place so long as the mark is in use in commerce. The United States Patent and Trademark Office (USPTO) requires regular post-registration maintenance to maintain a federal registration.
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How Do I Enforce My Trademark Rights?
Trademarks rights – which arise out of use and are protected by common law as well as federal registration – are enforced through a number of strategies, including cease and desist letters, UDRP proceedings, litigation in federal court and, in some cases, working with U.S. Customs and Border Control.
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Can a Domain Name Infringe on a Trademark?
A domain name is capable of infringing a trademark, however, the specific use and context of the domain name can affect the analysis.
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Can I Trademark a Slogan or Phrase?
Yes, trademarks generally consist of a word, phrase, and/or design, so they absolutely can include a slogan or phrase, provided the slogan or phrase is used as a trademark. Read post for a discussion of trademarking slogans and phrases.
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