Keywords patents, copyrights and trademarks , Trade secrests rughts to publucuty IP law theory

• Patent law: what, where, rules, coverange, scope, infringement and traded offs

• copyrights: Subject matter limits, inforingwment , fair use of DRM and policy

• Trademarks: What where how scope infrignement and dilution ; fair use and usage on internet

Fututre of IP: legislatiev proposal, alternative scope for improvement

Why Ip law ?

• Governance
  • Rapidexpansion in the past 20years
  • greater amount of litigation
  • Greater scope of law field
  • Ability to know the laws; More patents to protect
  • Involvement of supreme court in IP law
• Limited by Size; Protection
• rules aren’t primarily set in stone; impying that they have and can be changed and refined; Supreme court sets the rules.
• Knowing and understanding IP law means that you can help set the rules

Legend

• Type of Work: Type of work
• Acqui: Acquisition
• Std: Standard
• Val: Validity
• Use: Utility
• RegBody: Regulatory Body
• Estd: Estimated Time

Patents [Invention]

• Types of work: Any new and useful process, machine manufactured or composition of matter; Inventions: tangible/intangible
• Standard:
  • Novel(Unique)
  • Non Obvious
  • Utility(useful)
  • Disclosure
• Acquisition: By applying to the USPTO(US patent office) at Washington DC to be assigned to a patent examiner.
• Estimated Time: Any where from 18 months to 5/6/7 years with constant clarification between examiner and applicant.
• Regulatory Body:
  • Federal Jurisdiction
  • 35 USC §§
  • No State Jurisdiction
  • Single Appellate System compared to Standard regional circuit
• Validity: 20 Years from the date of filing
• Excerpt: Federal Immunity

Trade Marks [Distinctions]

• Types of work: Distinctive marks on product or product appearance.
• Standard: Distinctiveness: Consuming public should be able to identify the underlying source of product with trademark.
• Acquisition: Must be federally registered and be used in interstate commerce to be eligible for federal protection.
• Regulatory Body:
  • Federal Jurisdiction
  • 15 USC §§
  • Independent State enforcements
• Validity: Trademarks can be perpetual or forever.
  • Threat: Trademarks can become generic.
    • Case Study: Aspirin went from a specific medicine to a whole genre of medicines. Generalization implies that the general public is unable to recognize your underlying product due to wide usage.
• Excerpt: Liability of losing trademark if consuming public ceases to identify the name with its source.

Copyrights [Creativity based content]

• Types of Work: Any literary or artistic work (Creative)
• Standard:
  • Originality
  • Authorship: Creative process of creation by Author.
  • Must be Fixated in a tangible medium.
• Acquisition:
  • Automatic: Upon moment / instance of creation.
• Regulatory Body:
  • 17 USC §§
  • Exclusively Federal
• Validity:
  • Life of Author + 70 years post death In some cases:
    • Life of Author + 95 years post death
    • Life of Author + 120 years post death
• Excerpt: To be eligible and covered under federal protection, the author must register with USPTO, Washington DC. This is done by sending a copy of item to be copyrighted for copyright law to be enforced.

Trade secrets:

• Type of Work: Anything
• Standard: Secrecy or effort to protect
• Acquisition: Automatic
  • Upon moment of creation
  • No registration or disclosure required
• Regulatory Body:
  • State Jurisdiction
  • 44/50 States have relatively same or similar laws
• Validity:
  • Potentially perpetual unless disclosed.
• Excerpt:
  • Trade secrets are valid unless and until it no longer remains a secret.
  • Not eligible for federal protection.

Rights to Publicity:

• Type of Work:
  • Public reputation or social image
• Standard:
  • Public must recognize you as a public figure
• Acquisition:
  • Automatic
• Regulatory Body:
  • State Jurisdiction
• Validity:
  • Potentially perpetual
• Excerpt:
  • Public must recognize you as a public figure
  • Validity may continue post a person’s death until the public recognizes him/her.

Design Patents [Patents awarded to designs only]:

• Type of Work:
  • Product design and design specific only
• Standard:
  • Need to be novel (Unique)
  • Disclosure
• Acquisition:
  • By applying to the USPTO(US patent office) at Washington DC to be assigned to a patent examiner.
• Regulatory Body:
  • Federal Law Jurisdiction
  • 35 USC
• Validity:
  • 14 years from the date of grant.
• Excerpt:
  • Very much similar to an invention patent except for design only
  • No Utility or Non Obvious clause that’s necessary in invention patents

Theory of Intellectual Property rights and Central Debate

• Why have Intellectual Property Rights ?
• Basic economics of IP
• Central Debate in IP

Why have Intellectual Property rights ?

• Natural Rights theory [France]
• Person hood theory
• Utilitarian Theory [USA]

USC Article 1Section clause 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;” Reference

Utilitarian Basis of Intellectual Property:

• Q> What does it mean ?

    A> Intellectual Property is a grant to exclude others from the scope of the right allotted.
  

• Intellectual Property is functionalist:
  • A means to an End.
  • Pro invention and Pro discovery
• Influence on Free Market: Intellectual Property rights interfere with the free market that needs to be justified functionally.

Public Goods [Negate Intellectual Property Characteristics]:

- Non rival:
    - Any body can view / look or use the idea
        - Non limited Tangibility
- Non exclusion principle:
    - Idea or utility cannot be excluded from being used or implemented.

Intellectual Property law is a marginal change in the incentive structure

The goal of the government intervention is biased against inventions and discoveries becoming public goods while fostering competition and regulate(exclusion of specify goods) accordingly.

Trademarks:

• Protecting trademarks protects investments and goodwill.
  • Goodwill is indicated by positive feelings to underlying source of logos or images.
  • Investments go into creating brand awareness.
  • Investments are made into establishing Goodwill:
    • Reduces Search cost for consumer
    • increases efficiency in marketplace
    • Investment in product goodwill enforces investments to improve product quality

Alternative Scenario:

If no incentive was provided to build bran awareness, anybody could impersonate one and other creating a market of low quality goods and services.
Misrepresentation would cause a flood of cheap and low quality goods and services which would be detrimental to the society as a whole.

Incentive structure

[Protecting Trademarks -> Companies protect their goodwill -> Invest in Goodwill -> invest in building higher quality goods -> lower search costs]

Macro economic Principle

• IP rights allow Supra Marginal economic returns
• Competitive Markets vs Non-Competitive Markets

• IP rights are not monopolies.
• Price vs Quantity
  • Difference between competitive equilibrium to (Monopolistic equilibrium to maximize profits)
  • IP rights cater in-between monopoly & competitive equilibrium.
  • Dead Weight Loss: The gap between monopolistic or IP rights equilibrium to competitive equilibrium.

    Intellectual Property Cost:

• Monopolization cost: Price difference vs. utility
• Rent seeking
• Racing
• Patent trolls
• Restriction of future innovation
• Significant administrative costs
• Significant legislative costs
• Dead weight societal loss

Q: Are benefits greater than the incurred costs?

Components of Patent

Architecture of patent system

• Administrative Agency (PTO)
• The patent document
• Private Enforcement system (Litigation)

Administrative Agency (US Patent Office):

Evaluates applications for compliance with standards of patentability ### The patent document:
Establishes boundaries of protection & claims
- requires disclosure ### Litigation:
Market component determines reward & compensation.
- Involves full review of PTO grant of rights
- Could result in the patent owner losing his rights & patent; High risk ### Patent Document:

• Front page: To present to the user, reviewer as much of the critical information as possible in a concise & precise manner.
• All US patents are downloadable from USPTO
• Key components: (on front page)

Must Haves:

• Title
• Serial Number
• Date (prior art & priority) Validity
• Issue date ( to become prior art for others)
• Inventor name & Assignee (ownership)
• Contact information of owner
• Technology fields for classification
• Citations for references
• Prior Art
• Abstract (description of invention by inventor)
• Must include diagrams of products to deposit flow. If software, flow charts are essential
• Specification: Inclusion of every thing on background of technology, problem & solution offered by the technology patent; Detailed description; Use cases or production thoughts of inventor.

  Claims

• Must be explicit to claim what does and does not fall under the scope of invention
• Claim does not need to explain how to create/ make/ use the invention.
• The incentive for inventor to use vague language is to broaden the scope of claim during litigation.
• There ought to be a balance between broad & narrow patent claims to be open to scope but lesser so to meet standards and not to be dismissed (declared invalid)
• Watch vagueness mustn’t increase search cost.

The life of a patent

Life cycle Invention → Application → (Prosecution) → Patent Issue → (Enforcement 20yrs) → Expiration

• Prosecution:
  • Ex parte administrative process
  • Private/ Secret (for 18 months normally)
  • Procedures allow for “continuing” applications.
  • 2 stage appeals:
    • Board Patent Appeals & Interferences (Internal)
    • Federal Court & Federal circuit (Externally)
  • Re - examination
• Enforcement:
  • A judicial litigation process in Federal courts
  • Courts are empowered to review the validity of patents
  • Patents enjoy a statutory “presumption of validity” [valid until proven otherwise]
  • Declaration judgement action(s) aren’t uncommon [suing patent owner for a declaration that client does not infringe that patent] (Lawsuit in reverse)
  • Statistics:
    • More than 1% of all patents are litigated
    • More than 5% of all patents are licensed
    • Cost of litigation : 2M to lesser than 4.5M
    • Average expected value of a patent is lesser than 0$
    • Value of patent is decided by Market response