Contemporary Business and Online Commerce Law - Chapter 5

Intellectual Property and Internet Law

Trade secrets and information technology

• trade secret -- a trade secret is a product formula, pattern, design, compilation of data, customer lists, or other business secret that makes a business successful. The owner of a trade secret must take responsible precautions to prevent its trade secret from being discovered by others.
• misappropriation of a trade secret -- obtaining another's trade secret through unlawful means such as theft, bribery, or espionage is a tort. a successful plaintiff can recover profits, damages, and an injunction against the offender.
• the economic espionage act -- this act is a federal statute that makes it a crime for any person to convert a trade secret for his or her own or another's benefit, knowingly or intending to cause injury to the owners of the trade secret.

Traditional and cyber patents

Patent law is exclusively federal law; there are no state patent laws.

• patent -- patentable subject matter includes innovations such as machines; processes; compositions of matter; improvements to existing machines, processes, or compositions of matter; designs for articles of manufacture; asexually reproduced play its cynical and in living matter, invented by man.
  • to be patented, an invention must be:
    • novel
    • useful
    • nonobvious
• business plans -- the US Court of Appeals held that business plans are patentable
• patent application -- an application containing a written description of the invention must be filed with the US patent and trademark office in Washington, DC
• term -- patents are valid for 20 years
• public use doctrine -- a pattern may not be granted if the invention was used by the public. For more than one year prior to the filing of the patent application
• public infringement -- the unauthorized use of an author's patent constitutes patent infringement. The patent holder may recover damages and other remedies against the infringer.
• the American Inventors Protection Act -- this federal statute does the following:
  • permits an inventor to file a provisional application with the US patent and trademark office, three months before the filing of a final patent application
  • requires the patent and trademark office to issue a patent within three years after the filing of a patent application
• patent appeals -- these appeals are heard by the US Court of Appeals for the Federal Circuit in Washington, DC

Copyrights and Internet law

copyright law is exclusively federal law; there are no state copyright laws.

• copyright -- only tangible writings can be copyrighted. These include books, newspapers, addresses, musical compositions, motion pictures, works of art, architectural plans, greeting cards, photographs, sound recordings, computer programs, and mask works fixed in semi conductor chips.
• requirements for copyright -- the writing must be the original work of the author
• copyright registration -- copyright registration is permissive and voluntary. Published and unpublished work may be registered with the US copyright office in Washington, DC. Registration itself does not create the copyright.
• term -- copyrights are for the following terms:
  • individual holder -- life of the author plus 70 years
  • corporate Holder -- either 120 years from the date of creation or 2 * 95 years from the date of publication, which ever shorter.
• copyright infringement -- copyright infringement is the copying of a substantial and material part of a copyrighted work without the worst permission. The copyright holder may recover damages and other remedies against the infringer.
• fair use doctrine -- this doctrine permits use of copyrighted material without the consent of the copyright holder for limited uses (scholarly work, parody or satire, and brief quotation in news reports)
• no electronic theft act (NET Act) -- this federal statute makes it a crime for a person to willingly infringe a copyrighted work exceeding $1000 in retail value
• Digital millennium copyright act (DMCA) -- this federal statute, enacted in 1998, provides civil and criminal penalties that:
  • prohibit the manufacture and distribution of technologies, products, or services primarily designed for the purpose of circumventing rappers or encryption protection
  • prohibit unauthorized access to copyrighted digital works by circumventing the wrapper or encryption technology that protects intellectual property

Trademarks and online commerce

• Mark -- a mark is a trade name, symbol, Word, logo, design, or device that distinguishes the owners goods or services. Marks are often referred to collectively as trademarks. Types of marks are:
  • trademark -- identifies goods of a particular business
  • service mark -- identifies service of the particular business
  • certification mark -- certifies that goods or services are of a certain quality or origin
  • collective mark -- used by cooperatives, associations, and fraternal organizations
• requirements for trademark -- the mark must be either distinctive or have acquired a secondary meaning. The mark must have been used in commerce or the holder must intend to use the mark in commerce and actually do so within six months after registering the mark
• trademark registration -- marks are registered with the US patent and trademark office is in Washington, DC
• term -- the original registration of a mark is valid for 10 years and can be renewed for an unlimited number of 10 year periods
• trademark infringement -- the unauthorized use of another's registered mark is called trademark infringement. The mark holder may recover damages and other remedies from the infringer.
• trade dress -- trade dress involves the protection of the "look and feel" of a product, a product packaging, or a service establishment.
• generic name -- a mark that becomes a common term for product line or type of service loses its protection under federal trademark law.
• Federal Dilution Act of 1955 -- this federal statute protects famous marks from dilution. A violation of the act requires at the Mark B. Themis, the use by the other party be commercial, and they used cause dilution of the distinctive quality of the mark.

Internal protection of intellectual property rights

• Paris convention -- this international treaty protects patents and trademarks
• Berne convention -- this international treaty protects copyright
• WIPO Copyright Treaty -- this international treaty protects copyrights to computer programs and data compilations
• WIPO Phonogram Treaty -- this international treaty gives performers and producers the exclusive right to broadcast, reproduce, and distribute copies of their performances.