Intellectual Property

Intellectual property is intangible property that arises out of mental labor. It encompasses inventions, designs, and artistic work. Federal and state laws give certain rights and protections to those who develop creative works to exclusively control intangible assets in the form of:

  • Copyrights
  • Patents
  • Trademarks
  • Trade Secrets

The Constitution gives Congress the power to pass laws related to intellectual property. Article I, Section 8 of the U.S. Constitution gives Congress the authority to grant authors and inventors copyright and patent rights. Federal copyright law is found in chapters 1 through 8 and 10 through 12 of title 17 of the United States Code. Patent law is found in Title 35 of the United States Code.

Congress’ power to enact federal trademark protection is derived from the Commerce Clause. The Lanham Act is the primary statute that covers trademark law, but there are also state laws associated with trademarks. Most states have adopted part or all of the Uniform Trade Secrets Act, which protects any confidential business information that gives an enterprise an edge over the competition. Trade secrets include manufacturing, industrial, and commercial secrets.

In general, intellectual property rights are enforced by rights holders through civil lawsuits against the party that is infringing against the right through its conduct. The particular remedies for infringement vary depending on the types of intellectual property at issue.

Copyrights

Copyright protection is afforded to “original works of authorship.” Copyright protection includes the right to reproduce, the right to create derivative works, the right to distribute, and the right to publicly perform. Contrary to popular perception, copyright protection does not extend to mere ideas, systems, concepts, principles, or discoveries in their abstract forms.

Instead, to be eligible for copyright protection, a work must be fixed in a tangible medium of expression from which it can be communicated either directly or with the help of a device. The medium can be known now, or it can be later developed. Copyrightable works include literature, music, dramas and plays, choreography, pictorial work, graphics and sculptures, motion pictures, sound recordings, and architectural work.

Patents

A patent is a monopoly that provides an exclusive right to make, use, offer to sell, or sell a particular invention in the United States, or import it into the United States, for a limited period. The purpose of giving inventors patent protection is to encourage inventers to invest their time and resources in developing new and useful discoveries. In order to obtain the limited monopoly, inventers must disclose patented information to the U.S. Patent and Trademark Office (USPTO). In order to get a patent, the application to the USPTO must demonstrate subject matter that can be patented, usefulness, novelty, non-obviousness, and enablement.

Trademarks

To obtain trademark protection, a word, phrase, logo, symbol, shape, sound, fragrance, or color must be used in commerce by a producer to identify goods, and it must also be distinctive. Exclusive rights to a trademark are awarded to the first producer to use it in commerce. The second requirement of distinctiveness encompasses four traits: arbitrary/fanciful, suggestive, descriptive, and generic.

Trade Secrets

Under the Uniform Trade Secrets Act (UTSA), trade secrets are information that derives independent economic value from not being generally known through appropriate means by other people who might obtain economic value from its disclosure or use, and that the holder of the trade secret strives to keep secret with reasonable efforts. In the past, improper use or disclosure of a trade secret was a common law tort, which required six factors to be considered when deciding whether information counted as a trade secret. However, the majority of states have enacted the UTSA. In addition to proving that the trade secret qualifies for protection, a trade secret holder trying to enforce a trade secret under the UTSA needs to prove that a defendant wrongfully acquired and misappropriated the secret information.

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  • S. 1174: Artist-Museum Partnership Act of 2017 May 17, 2017 Bill Text: This bill's text is now available.
  • S. 1174: Artist-Museum Partnership Act of 2017 May 17, 2017 Introduced: Sponsor: Sen. Patrick Leahy [D-VT] This bill was referred to the Senate Committee on Finance which will consider it before sending it to the Senate floor for consideration.
  • H.R. 2450: FILM Act of 2017 May 15, 2017 Introduced: Sponsor: Rep. Doug Collins [R-GA9] This bill was referred to the House Committee on Ways and Means which will consider it before sending it to the House floor for consideration. 4 cosponsors are on that committee.
  • H.R. 2450: FILM Act of 2017 May 15, 2017 Bill Text: This bill's text is now available.
  • H.R. 244: Consolidated Appropriations Act, 2017 May 3, 2017 Passed House & Senate (President next): Last Action: Senate agreed to the House amendment to the Senate amendment numbered 1 to the bill (H.R. 244) by Yea-Nay Vote. 79 - 18. Record Vote Number: 121. Explanation: This bill was passed by Congress…

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  • PLI Advanced Patent Prosecution Workshop July 22, 2017 Practising Law Institute (PLI) will be holding its "Advanced Patent Prosecution Workshop 2017: Claim Drafting & Amendment Writing" on July 25-26, 2017 in New York, NY, on August 17-18, 2017 in San Francisco, CA, and on September 12-13,…
  • BCP Customer Partnership Meeting July 22, 2017 The U.S. Patent and Trademark Office will be holding its next biotechnology/chemical/pharmaceutical (BCP) customer partnership meeting on Wednesday, August 2, 2017. The upcoming BCP meeting will also be a Bicoastal BCP (BCBCP) event, with the meeting…
  • IPO Webinar on Inevitable Disclosure under Defend Trade Secrets Act July 22, 2017 The Intellectual Property Owners Association (IPO) will offer a one-hour webinar entitled "Inevitable Disclosure, the DTSA, and Avoiding Contamination" on July 27, 2017 from 2:00 to 3:00 pm (ET). Bret Cohen of Mintz Levin Cohn Ferris; Ken…
  • Webinar on Patents and Export Control Compliance July 22, 2017 Strafford will be offering a webinar/teleconference entitled "Patents and Export Control Compliance: Managing Risk and Avoiding Unintentional Violations -- Minimizing Export Control Liability in Patent Application Preparation, Development and…
  • In memoriam of Kenneth Jay Lane: "My designs are all original"; original from someone" July 22, 2017 Fakes and imitations have long held a fascination in the world of creation, not always pejoratively. This Kat remembers his notion of what is "genuine" being challenged in 1990 by an iconic exhibition presented by The British Museum, entitled…