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Intellectual Property Law: Commercial, Creative and Industrial Property
Incisive Media, Pages: 2,500
CHAPTER 1
Overview of Intellectual Property
1.01 What Is Intellectual Property?
[1] Distinctive Aspects of Intellectual Property
[2] Subfields of Intellectual Property
[3] Emergence of Intellectual Property as a Single Field of Law
[4] Comparing the Forms of Intellectual Property
1.02 Protected Subject Matter
[1] Patents
[2] Copyrights
[3] Semiconductor Chip Protection
[4] Trade Secrets
[5] Trademarks and Related Property
[6] Exploiting the Overlap
1.03 Strength of Protection
[1] Patents
[2] Copyrights
[3] Semiconductor Chip Protection
[4] Trade Secrets
[5] Trademarks
1.04 Duration of Protection
1.05 Requirements for Protection
[1] Patents
[2] Copyrights
[3] Semiconductor Chip Protection
[4] Trade Secrets
[5] Trademarks and Related Property
1.06 Procedure for Protection
[1] Patents
[2] Copyrights
[3] Mask Works
[4] Trade Secrets
[5] Trademarks and Related Property
1.07 Infringement
[1] Infringing Activities
[2] Standards of Infringement
1.08 Two Paradigms of Intellectual Property Law
[1] The Constitutional Paradigm: “Strong” Protection for a Limited Time
[2] The Interstate Commerce Paradigm: “Weak” Protection for Potentially Unlimited Time
[3] Federal Preemption
1.09 International Protection of Intellectual Property
[1] Territoriality
[2] Treaties and International Conventions
[3] Effects and Problems of International Conventions
CHAPTER 1A
The TRIPS Agreement, the WTO, and the GATT Uruguay Round
1A.01 Introduction: The Importance of the Uruguay Round Agreements
1A.02 Impact of the Uruguay Round Agreements
[1] The GATT 1947 and the GATT 1994
[2] Breakthroughs of the Uruguay Round Agreements
1A.03 The Uruguay Round Agreements and the World Trade Organization
[1] The World Trade Organization (WTO)
[2] The Multilateral Trade Agreements (Including the TRIPS Agreement)
[3] The Plurilateral Trade Agreements
1A.04 Effect of the Uruguay Round Agreements on Domestic Law
1A.05 Effective Date of the WTO and TRIPS Agreements and Transition Rules
[1] Entry into Force
[2] Transition Rules
[3] Table of Transition Rules
1A.06 Substantive Requirements of the TRIPS Agreement
[1] General Requirements
[2] Specific Requirements for Patents
[3] Specific Requirements for “Undisclosed Information” (Trade Secrets)
[4] Specific Requirements for Copyrights
[5] Specific Requirements for Semiconductor Chip Protection
[6] Specific Requirements for Trademark Protection
[7] Specific Requirements for Geographical Indications
[8] Specific Requirements for Industrial Designs
[9] Protection of Existing Matter
1A.07 Remedial Requirements of the TRIPS Agreement
[1] Mandatory Remedies
[2] Optional Remedies
[3] The “Escape Clause”
1A.08 Requirements for Legal and Administrative Procedure
[1] General Requirements
[2] Rights of Appeal
[3] Transparency
1A.09 Conforming Changes in United States Law
[1] Legislative Changes Under the Uruguay Round Agreements Act
[2] Changes Not Made
CHAPTER 2
Obtaining Patent Rights
2.01 Introduction
2.02 Patentable Subject Matter—Types of Patents
[1] Utility Patents
[2] Design Patents
[3] Plant Patents
2.03 Problematic Subject Matter
[1] Introduction
[2] Fundamental Scientific Principles
[3] Mathematical Formulas and Algorithms
[4] Business Ideas
[5] The Limited Exception for Medical and Surgical Procedures
2.04 The Novelty Requirement
[1] The First-to-Invent Rule and Section 102(a)
[2] The One-Year Statutory Bar
[3] Priority of Invention
[4] Other Aspects of the Novelty Requirement
2.05 The Utility Requirement
2.06 The Nonobviousness Requirement
[1] The Three-Part Test for Nonobviousness
[2] Objective Factors or “Secondary Considerations”
[3] “Combination” Patents
[4] Novelty and Nonobviousness: the Synergy of Sections 102 and 103
[5] “Obvious to Try”: a Bogus Standard
[6] The Federal Circuit’s “Suggestion” Test
[7] New Uses for Old Products and Processes
2.07 Patent Disclosure Requirements: Enablement, Definiteness, Best Mode, and Written Description
[1] Enablement
[2] Definiteness of Patent Claims
[3] Relationship of Disclosure and Definiteness to the “Obvious to Try” Doctrine
[4] Best Mode
[5] Enablement Through Deposit of Biological Materials
[6] Written Description
2.08 The Patent Applicant’s Duty of Candor and Inequitable Conduct in Patent Prosecution
[1] The Duty of Candor and Included Duty to Disclose
[2] Inequitable Conduct (Formerly “Fraud on the Patent Office”)
2.09 Other Technical Requirements for Valid Patents
[1] Double Patenting
[2] Inventorship
2.10 The Presumption of Patent Validity
CHAPTER 2A
Scope of Patent Rights
2A.01 Nature of Exclusive Rights
[1] The Power to Exclude and Its Strength
[2] The Elusive “Experimental Use” Exception
[3] Patent Suppression and Refusal to License
2A.02 Duration of Exclusive Rights
[1] Basic Rules for Computing the Patent Term
[2] Patent Term Adjustment and Extension
[3] Effective Dates and Transition Rules
2A.03 Scope of Exclusive Rights
[1] Claim Interpretation and “Literal” Infringement
[2] The Doctrine of Equivalents
[3] Means-Plus-Function Claims
2A.04 Statutory Extensions of Exclusive Rights
[1] Sale of Components, Material or Apparatus
[2] Foreign Assembly
[3] Process Patents
[4] Provisional Rights
2A.05 Limitations on Exclusive Rights
[1] The First-Sale or Exhaustion Doctrine
[2] Prosecution History Estoppel or “File Wrapper” Estoppel
[3] Reverse Doctrine of Equivalents
[4] Patent Misuse
[5] The Repair Doctrine
[6] Elimination of Licensee Estoppel: The Licensee’s Right to Challenge Patent Validity
[7] Regulatory Testing of Health Care Products
2A.06 Some International Aspects of Patent Protection
[1] International Protection in General
[2] Some General Principles of Patent Statutes Abroad
2A.07 The Patent Cooperation Treaty
2A.08 Foreign Filing Licenses and Secrecy Orders
[1] Invention Screening and “Foreign Filing Licenses”
[2] Secrecy Orders
CHAPTER 3
Products of Patented Processes
3.01 Processes and Their Products
3.02 Products Not Covered
[1] The “Material Change” Exemption
[2] The “Trivial and Nonessential Component” Exemption
[3] Coverage or Protection Limited to Products of Manufacturing Processes
3.03 Liability of Retailers and Noncommercial Users
3.04 The Inventory Rule
[1] Inventory Covered and “Notice of Infringement”
[2] Does “Knowledge” Override the Limitation of Remedies?
[3] Permissible Quantity
[4] Full Liability for Those Who Practice the Patented Process and Their Control Persons; Patent Marking
3.05 Patent Disclosure and Notification of Infringement
[1] Requests for Disclosure
[2] Responses to Requests for Disclosure
[3] Written Notification of Infringement
3.06 Presumption of Use of Patented Process
[1] Substantial Likelihood of Use
[2] Reasonable Effort to Determine Process Used
3.07 Effective Date and “Grandfather” Clause
CHAPTER 4
Trade Secrets
4.01 Overview of Trade Secrets
[1] Unusual Features of Trade Secrets
[2] Underlying Policies
[3] Sources of Law
4.02 The Subject Matter of Trade Secret Protection
[1] The Definition of “Trade Secret”
[2] The Rejected Exceptions for Transitory and Negative Information
[3] Examples of Trade Secrets
[4] Employees and Public Policy
[5] Customer Lists
4.03 The Fundamental Requirements for a Trade Secret: Limited Availability, Economic Value, and Relative Secrecy
[1] Limited Availability
[2] Economic Value
[3] The Requirement for Reasonable Efforts
[4] The First Restatement’s Six Factors
[5] Practical Evidentiary Factors
4.04 “Exclusive” Rights in Trade Secrets and Misappropriation
[1] Duration of Legal Protection
[2] Misappropriation and Improper Means
[3] Product Modification and Improvement: Determining Whether a Trade Secret Has Been Used
[4] Availability Through Proper Means: The “Could Have” Defense
[5] Indirect and Accidental Misappropriation
[6] Are Trade Secrets “Property”?
[7] Relief from Misappropriation and the “Head Start” Period
4.05 Trade Secrets and Contracts
[1] The Effect of Tort Law and Confidential Relationships
[2] Contractual Protection of Confidential Information
[3] The Practical Value of Nondisclosure Covenants
[4] Nondisclosure and Noncompetition Covenants
4.06 Trade Secrets and Patents
[1] The Election Between Patent and Trade Secret Protection
[2] “Hybrid” Licensing Agreements
4.07 International Aspects of Trade Secret Protection
[1] The Weakness of Trade Secret Protection Abroad
[2] The Value of Practical Measures Abroad
4.08 Disclosure of Trade Secrets to and by the Government
[1] Government Contracts: Protection of Technical Data and Computer Software
[2] Governmental Use or Disclosure of Information
[3] Compensation for Disclosure or Use by the Government
CHAPTER 5
What Is Copyrighted?
5.01 Subject Matter of Copyright
[1] General Scope of Subject Matter
[2] The Idea/Expression Dichotomy
[3] Assessing Infringement: Access and Substantial Similarity
5.02 Problematic Categories of Copyrighted Subject Matter
[1] Computer Programs
[2] Compilations and Databases
[3] Useful Articles
[4] Architecture
[5] The Law
5.03 Prerequisites for Copyright Protection: Fixation, Originality, and Creativity
[1] Fixation
[2] Originality
[3] Creativity
[4] What Copyright Does Not Require
CHAPTER 5A
Technological Protection for Copyrighted Works
5A.01 Introduction
5A.02 The Anti-Circumvention Rule
[1] Definitions Under the Anti-Circumvention Rule
[2] The Anti-Circumvention Rule’s Legal and Practical Impact
[3] The Exemptions Promulgated by the Library of Congress
5A.03 The Two Anti-Trafficking Rules
[1] The Anti-Trafficking Rule for Means to Defeat Access Controls
[2] The Anti-Trafficking Rule for Means to Defeat Use Con-trols
[3] The Three Conditions for Anti-Trafficking Liability
[4] Anti-Trafficking Liability and the First Amendment
5A.04 Exceptions to Anti-Circumvention and Anti-Trafficking Rules
[1] Subject-Matter Classification
[2] The “Target Rules” of the Exceptions
[3] Two Examples: Encryption Research and Reverse Engineering
§5A.05 Rules Protecting Copyright Management Information
[1] What Is CMI?
[2] The Basic Rules Protecting CMI
[3] Exceptions and Limitations on Liability
5A.06 Civil Remedies and Criminal Sanctions
[1] Civil Remedies
[2] Criminal Sanctions
CHAPTER 6
The Nature of Copyright Protection
6.01 The Copyright Owner’s Exclusive Rights and Moral Rights
[1] The Reproduction Right
[2] The Derivative Work (Adaptation) Right
[3] The Distribution Right
[4] The Rights of Public Performance and Public Display
[5] The Special Regime for Sound Recordings and Phonorecords
[6] Moral Rights
[7] Performer’s Rights
[8] Fair Use
6.02 Ownership of Copyright
[1] Copyright and Copy Distinguished
[2] The Divisibility of Copyright
[3] Who Owns the Copyright?
[4] Open Source
6.03 Transfer of Copyright
[1] Transfers Permissible
[2] Expropriation
[3] Requirements to Effect a Transfer
6.04 Duration of Copyright
[1] Term of Copyright: Works Created on or After January 1, 1978
[2] Works Created Before January 1, 1978
[3] Restoration of Copyright in Certain Works of Foreign Origin
6.04A Statutory Termination of Copyright Transfers and Licenses
[1] The Evolution of the Termination Right and the Four Kinds of “New Estates”
[2] What Grants Are Terminable
[3] Termination of Pre-1978 Grants
[4] Termination of Post-1977 Grants
[5] Statutory Protection of the Termination Right
[6] Effect of Termination on Contractual Provisions
6.05 Copyright Misuse
CHAPTER 7
Copyright Formalities: Notice, Registration and Deposit
7.01 Introduction: The International Copyright Conventions and United States Copyright Formalities
7.02 Copyright Notice
[1] The 1909 Act Regime
[2] The Pre-Berne 1976 Act Regime
[3] The Post-Berne 1976 Act Regime
7.03 Registration
[1] Overview of Registration
[2] Effects of Registration
[3] The Mechanics of Registration
7.04 The Deposit Requirements
[1] “Mandatory” Deposit
[2] Registration Deposit
CHAPTER 8
Semiconductor Chip Protection
8.01 Technical Background
[1] Semiconductor Chip Products
[2] Chip Fabrication
[3] The Manufacturing Process
[4] Chip Design
[5] Economics of Semiconductor Chip Production
8.02 Legislative History of the Chip Act
[1] Need for the Chip Act
[2] Outline of Legislative History
[3] The Switch from Copyright to Sui Generis Protection
8.03 Protected Subject Matter
[1] The Nature of Protected Designs
[2] Fixation
[3] Originality
[4] Idea/Layout Dichotomy
8.04 Exclusive Rights in Mask Works
[1] The Reproduction Right
[2] The Distribution Right
[3] The Importation Right
[4] Contributory Infringement
8.05 Limitations on Exclusive Rights
[1] Reverse Engineering
[2] The Innocent Purchaser Exception
[3] First-Sale Doctrine
8.06 Term and Nature of Protection
[1] Term of Protection
[2] Commercial Exploitation
[3] Retroactivity
[4] Constitutional Authority
[5] Effect on Other Laws
8.07 Mask Work Registration, Notice, Ownership, and Transfer
[1] Registration of Mask Works
[2] Ownership of Mask Works
[3] Transfer and Licensing of Mask Works
[4] Standing to Sue for Infringement
[5] Mask Work Notice
8.08 International Considerations
[1] Requirements for Protection of Foreign Mask Works
[2] Statutory Incentives for Reciprocity
[3] International Treaties
CHAPTER 9
Trademarks and Unfair Competition: What Qualifies for Protection
9.01 Trade Symbols: The Subject Matter of Protection Under Trademark Principles
[1] Technical Trademarks
[2] Trade Dress
[3] Titles and Characters
[4] Trade Names
[5] Service Marks
[6] Geographic Trademarks
[7] Internet Domain Names
9.02 Trademark Policies and Requirements for Protection
[1] Trademark Policies
[2] Distinctiveness
[3] Secondary Meaning
[4] Nonfunctionality
[5] Other Statutory Restrictions
CHAPTER 10
Scope of Legal Protection of Trademarks and Other Trade Symbols
10.01 The Standard for Infringement: Likelihood of Confusion
[1] The Nature of “Likelihood of Confusion”
[2] Considering All the Circumstances
[3] Applying the “Likelihood of Confusion” Standard
10.02 Strength and Duration of Trade Symbol Protection
[1] Use and Registration
[2] Abandonment
10.03 Trademark Dilution
[1] Sources of Trademark Dilution Law
[2] What Is Dilution?
[3] The Requirement of Distinctiveness
[4] Other Requirements for Protection
[5] A Multifactor Test for Dilution?
[6] Federal Preemption
10.04 Trademark Fair Use
[1] The Descriptiveness Branch of Fair Use
[2] The Comparison Branch of Fair Use
CHAPTER 11
Protecting and Transferring Trade Symbols: Use, Registration, Assignment, Licensing, and Counterfeiting
11.01 Perfecting Protection by Use or Registration
11.02 Protection Through Use
[1] The Common-Law Rule
[2] Nature of Use
[3] Sources of Common Law
[4] Geographic Extent of Priority
11.03 Federal Registration
[1] Requirements for Federal Registration
[2] Advantages of Federal Registration on the Principal Register
[3] Import Exclusion, Parallel Imports, and Gray Goods
[4] The “Limited Area” Defense
[5] Concurrent Use
[6] Registration on the Supplemental Register
11.04 State Registration
11.05 International Protection
[1] International Conventions and Priority
[2] Protection Against Unfair Competition Abroad
[3] International Registration under the Madrid Protocol
11.06 Trademarks and Goodwill
[1] Goodwill
[2] The Lanham Act’s Abandonment and “Related Company” Rules
11.07 Assignment and Transfer of Trademarks
[1] The Rule Against Assignments in Gross (Without Goodwill)
[2] Statute of Frauds and Recordation
11.08 Trademark Licensing
11.09 Trademark Counterfeiting
[1] Congressional Aims and Purposes
[2] Marks Protected Against Counterfeiting
[3] Definition of “Counterfeit”
[4] State of Mind Requirements
[5] Extenuating Circumstances
CHAPTER 12
Monetary Remedies
12.01 Introduction
12.02 Actual Damages
[1] Causation
[2] Patent and Trademark Marking
[3] Amount of Damages
12.03 Reasonable Royalties and Statutory Damages
[1] Reasonable Royalty
[2] Statutory Damages
12.04 The Infringer’s Profits
[1] Apportionment of Profits
[2] Deductions from Gross Revenue
[3] Double Counting
[4] The Exception for Utility and Plant Patents
[5] The Lanham Act’s Equitable Overlay
12.05 Augmented and Punitive Damages
[1] Augmented Damages for “Willful” Infringement
[2] Punitive Damages
12.06 Attorneys’ Fees
[1] The Fogerty Decision and the Demise of the Double Standard
[2] The District Courts’ Discretion
[3] How Discretion Is Exercised
[4] Semiconductor Chip Protection
[5] Trade Secret Cases
[6] Prevailing Party
[7] Relationship Between Attorneys’ Fees and Augmented or Punitive Damages
[8] The Effect of Fee-Award Statutes on Rule 68 Settlement Offers
12.07 Interest
[1] Prejudgment Interest
[2] Postjudgment Interest
CHAPTER 13
Nonmonetary Relief
13.01 Injunctive Relief
[1] Preliminary Injunctions
[2] Permanent Injunctions
[3] The Scope of Injunctive Relief
13.02 Exclusion from Importation
[1] Statutory Exclusion by the Customs Service
[2] Tariff Act Exclusion: Section 337
13.03 Impoundment and Destruction
[1] Impoundment and Destruction in General
[2] Seizure in Trademark Counterfeiting Cases
13.04 Criminal Sanctions
[1] Criminal Sanctions for Copyright Infringement
[1A] Criminal Sanctions for Violation of Performers’ Rights
[2] Criminal Sanctions for Trademark Offenses
[3] Criminal Offenses Relating to Trade Secrets
Index
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