Patent, Trademark & Trade Secret Law

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Presentation transcript:

Patent, Trademark & Trade Secret Law Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta

Patent Law Article I, Section 8 of the Constitution 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

Protection Patents protect the underlying idea whereas copyrights protect only an expression (of an idea) e.g., Thomas Edison v. Joe Schmoe Patents last for 20 years (from date of filing) Patents protect from independent creation copyrights do not U.S. now protects first to file, not first to invent as of March 16, 2013 (America Invents Act (2011))

§ 101 Subject Matter Invention must be new and useful process machine manufacture, or composition of matter Can include “anything under the sun that is made by man.” Cannot include laws of nature, scientific principles, mathematical formulas

§ 102 Novelty Cannot get a patent if “the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” “Absolute novelty”

§ 103 Nonobviousness Cannot get a patent if “the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains”

Molecular Pathology v. Myriad Genetics (2013) A patent was claimed on the test to determine if a woman carried the BRCA2 gene The test cost $4,000 The Supreme Court held that "A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA [a strand of synthetically-produced complementary DNA] is patent eligible because it is not naturally occurring."

Patent Trolls

Trademark Law Combination of federal and state law Authority of federal law derives from regulation of interstate commerce Authority of state law derives from regulation of intrastate commerce

Protects Dual Interests Protects trademark owner’s interest in brand name value and good will Protects consumers from confusion Renewable every 10 years

Trademarks can be … Words Phrases Symbols Sounds Colors Smells

Generics

Generics Dixie Cups Frisbee Hi-Liter Kitty Litter Kleenex Magic Marker Ping-Pong Popsicle Scotch Tape Sheetrock TV Dinners Wiffle Ball Cellophane Corn Flakes Dry Ice Lanolin Mimeograph Monopoly Pogo Stick Raisin Bran Shredded Wheat Thermos Toll House Trampoline