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What Is A Copyright? A form of protection provided to theauthors of “original works ofauthorship”. The exclusive right of an author to– copy a work,– distribute copies– create derivative works, and– perform or display a work publicly Is of a limited term
Requirements For Copyright Work must be original– not copied– meet a minimal threshold for originality Work may be any work of authorship– books, poems, plays, movies, dances,ballets, musical compositions, audiorecordings, paintings, drawings,sculptures, photographs, software Work must be fixed in a tangiblemedium of expression
What Is A Copyright? Key statutes:– 1976 Copyright Act– Berne ConventionImplementation Act (1988)– Sono Bono Copyright TermExtension Act (1998)
What Can’t Be Protected By Copyright? Works that have not been fixed in a tangible form ofexpression. Titles, names, short phrases, and slogans; familiar symbols ordesigns; mere variations of typographic ornamentation,lettering, or coloring; mere listings of ingredients or contents.(Trademark can cover some of these) Ideas, procedures, methods, systems, processes, concepts,principles, discoveries, or devices, as distinguished from adescription, explanation, or illustration. (Patents can coversome of these) Works consisting entirely of information that is commonproperty and containing no original authorship.
Term Of A Copyright Life of the author plus 70 years (workscreated after Jan. 1, 1978) Works of corporate authorship: 95years from the date of first publicationor 120 years from the date of creation,whichever expires first Term for works created before 1978 iscomplex Works published before 1923 are all inthe public domain
What Is A Trademark? A distinctive sign of some kindwhich is used to uniquely identifyan entity’s products and/orservices to consumers - an“Indicator of Source”– A trademark comprises aname, word, phrase, logo,symbol, design, image, or acombination of these The function of a trademark is toexclusively identify thecommercial source or origin ofproducts or services.
What Is A Trademark? Trademark rights arise out of the useand/or registration of a mark inconnection only with a specific type orrange of products or services.– Think of Apple Computer v. AppleRecords; United Airlines v. UnitedParcel;– It may be possible to prevent theuse of a mark in relation to productsor services outside the specificrange if it is likely that the businesswould expand into that range.
Trademark Rights Trademark rights are establishedthrough actual use in the marketplace Benefits of registration A registered trademark confers abundle of exclusive rights upon theregistered owner– the right to exclusive use of themark in relation to the products orservices for which it is registered. Once trademark rights are establishedin a jurisdiction, these rights aregenerally only enforceable in thatjurisdiction
Types Of Trademarks Fanciful Arbitrary Suggestive Descriptive Generic AppleWindows
Trademark Notice Requirements The ™ symbol may be used whentrademark rights are claimed in relationto a mark, but the mark has not beenregistered Services marks – SM The ® symbol is used to indicate thatthe mark has been so registered. It is not mandatory to use either symbol,but such notice can improve availableremedies in the event of infringement Either symbol is typically placed in thetop left- or right-hand corner of a mark.TM®
Other Trademark Concepts Secondary Meaning Abandonment Genericide Naked Licensing
Patent Law Basicsand Contrast WithTrade SecretProtection
What Is A Patent? Exclusive right for inventions– Right to exclude others frommaking, using or selling apatented invention– Not a right to practiceinvention Limited time duration– Twenty years after filingdate
Public Policy Considerations Objectives of a patent system– Reward inventor for skill and labor– Stimulate further efforts in the field– Secure to the public immediate knowledgeof the invention, and unrestricted right touse after patent expires Contrast with trade secret law Contract theory– Limited monopoly in exchange forcomplete disclosure of invention
Reasons To Get A Patent Competitive advantages Additional economic value Intangible value
Requirements For Patentability Utility (§ 101) Novelty (§ 102)– Anticipation by prior art– Loss of right to patent invention Non-Obviousness (§ 103)– Secondary considerations Sufficiency of Disclosure (§ 112)– Written description– Best mode
Elements Of A U.S. Patent Bibliographical data Specification– Drawings– Background– Invention Summary– Detailed Description ofPreferred Embodiment Claims
Process Of Obtaining A Patent Identification Patent prosecution
Drafting A Patent Application Meeting betweeninventor and patentcounsel Drafting of application Inventor review
Prosecuting The Patent Application Process Time Cost
What Is A Trade Secret? California Uniform Trade Secrets Act,Civil Code § 3426.1: “Trade secret” means information,including a formula, pattern,compilation, program, device, method,technique, or process, that:– Derives independent economic value,actual or potential, from not beinggenerally known to the public or to otherswho could derive economic value from itsdisclosure or use; and– Is the subject of reasonable efforts underthe circumstances to maintain its secrecy.
Examples Of Trade Secrets “Trade secret” means information,including a formula, pattern,compilation, program, device,method, techniques, or process …. Traditional examples of informationthat may constitute a trade secret “Negative information”
Maintain Secrecy Trade secrets must be thesubject of “reasonable efforts”to maintain secrecy: Cal. Civ.Code § 3426.1(d)(2)– A “trade secret” … “is thesubject of efforts that arereasonable under thecircumstances to maintain itssecrecy.”
Comparing Patents & Trade SecretsTrade Secret PatentTerm Potentially unlimited Twenty years after filingdateDisclosure Destroys protection Necessary for protectionRequirements Reasonable efforts tomaintain secrecyFile with USPTO within oneyear of sale or publicationScope ofprotectionAny technical or businessinformation or data ofvalue to a competitor ifknownTechnical apparatus ormethods, compositions ofmatter, business methodsReverseEngineeringNot actionable Actionable as infringement
O’MelvenyO’Melveny&MyersO’Melveny & Myers LLP610 Newport Center Drive, 17thFloorNewport Beach, CA 92660(949) 760-9600www.omm.comPaul Veravanich(949) email@example.com@yahoo.comhttp://www.linkedin.com/in/veravanichAlison Taub(949) firstname.lastname@example.orgFor More Information, Contact: