Intellectual Property
Section I – Introduction
Intellectual Property is legal protection for products or thoughts process.
Sources of IP law:
Patent and Copyright based on Art. I §8 cl.8 of the Constitution, (“IP” clause) states “Congress shall have the power…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.”
Trademark law based upon Art. I §8, cl. 3, (Commerce clause).
Trade Secrets based on state laws and Uniform Trade Secrets Act.
Purpose: Intellectual Property law seeks to balance the idea that competition and public access are good against the property rights and incentives to invent that are the bases for the various IP protections. The 3 main areas of IP are not exclusive and certain inventions or works may receive protection under two of the IP regimes.
Section II – Patents
Patent law is the strongest IP protection available in the US. It entitles the holder of the patent to exclude others from the use of the patented instrument and there is no duty to exploit the invention and no compulsory license system.
I. Three Types of Patents
a. Utility Patents
b. Design Patents
c. Plant Patents. (Asexually reproduced plants).
II. Justification for Patents:
a. Incentive to invent- Ensures that free riders are not able to undercut the original inventor.
b. Disclosure- Patentee gets exclusive right but the holder must disclose information about the invention to the public.
c. Rewards for Service- Inventions are a service to society and those that do it should be rewarded.
d. Natural Rights- If the inventor applies their labor to invent something it is their property.
e. Gets rid of Arrow’s Disclosure Paradox- If an inventor discloses an idea to get manufacturing, the other side may take the idea and not manufacture the inventor’s idea.
f. Cost- The patent system decreases transaction costs.
III. Term of Patents
a. §154(a)(2) of the Patent Act states that a patent term is 20 years from the date on which the application was filed. However, since most patents take about 18 to 24 months to be issued, the actual length is about 18 years.
b. The time period has moved to become closer to that of the other countries patent terms.
c. The filing date is considered to be the date of the invention.
IV. Patent Appl
ppeals and Interferences to resolve the issue. The burden of proof rests with the party who filed the later application.
c. During the application period, if the applicant finds other patentable features of the pending invention, a Continuation-in-part may be filed. This allows the inventor to keep the earlier filing date but submit new material that gets the filing date of the CIP application. Note- Because of the fact that CIP’s can continue without limitation, there has been a problem of submarine patents. These are patents that stayed in the prosecution phase for a long time the free access to the invention led to use by the industry that was undermined when the patent was finally issued.
d. The Examiner uses the claims in the application to determine the periphery of the invention and decide whether it is patentable.
If the applicants are dissatisfied with the examiners decisions, they can appeal to the BPAI and then to the Federal Circuit. They may also appeal
