Select Page

Property I
Villanova University School of Law
Caudill, David S.

Property Outline—Caudill 2016 Spring
 
I.                 Intellectual Property
 
A.      Copyrights:
·        Definition: A set of rights granted to owners of original works of authorship that are fixed in a tangible medium of expression
Original works of authorship, fixed in a medium of expression, now known or developed later
originality – must promote progress
works of authorship – literary, musical, dramatic, choreographic, pictorial/graphic/sculptural works, motion pictures, sound recordings, architectural
must be fixed in a medium (written down) → then nobody can take it
arises upon creation, don’t need to register
Examples
Einstein’s equation → not an invention that does something
Knowledge about the universe should be public
Removing Shakespeare’s E’s → no progress, he’s not the author of anything
carrying case for laptop
trivial shapes, no progress
can’t take things that everyone has and say they have to give them money to use it
literary/musical/artistic rights get protection if they are original
“promotes progress” → must be original
The U.S. Constitution Art. 1 Section 8 cl 8 (patents and copyrights): “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.”
O A patent cannot be put on
1)     Just an abstract idea
2)     A product of nature
3)     A trivially simple product
4)     A literal translation.
 
·   17 USC 102 (From the copyright act): (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
o   It does not take much originality to justify a copyright
o   A copyright arises from the creation of the work.
o   Remember the definition, “Original works of authorship fixed in any tangible medium of expression.”
 
 
1. Oddzon Products, Inc. v. Oman
Facts: P went to copyright the shape and feel of the Koosh Ball, and defendant rejected the request.
Issue: Was the Koosh ball original enough to be copyrightable?
Holding: The Court says that shape and color are indeed copyrightable, however the Koosh Ball is not because the test is whether the work contains certain “minimal levels of creativity and originality.”
Analysis: Copyright requires creativity and originality. It can be found in a familiar shape shuch as a sphere only if creativity is added. Therefore, the register did not abuse its discretion in finding that the Koosh Ball’s tactile qualities were inseparable from the objective utilitarian function.
 
Manufacturer still believed Koosh ball copyrightable
 
·   A parody is always a defense to copyright infringement
 – Fair use exception
Can be used for educational purposes, etc.
 
Mannequin with hungry look was copyrightable
2 judges said yes
1 said no
 
B. Trademarks
·   Definition: A trademark is a name, symbol, or device that distinguishes the source of commercial goods or services.
·   If people will be confused by who made the produ

cquired secondary meaning
 
·   Registration of a trademark is not required to establish rights to the mark, nor is it required to begin use of the mark.
·   Unlike copyrights or patents, trademarks potentially can last indefinitely if the owner continues to use the mark to identify its goods or services.
·   TM, SM, or ® are used to signal trademarks, service marks, and registered trademarks.
 
C.        Patents
·   Definition: A monopoly for inventors of processes, machines, and compositions over their inventions.
·   35 USC 101, 103 (Selected Patentability Statutes)
101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.
103: A patent may not be obtained though the invention is new, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
 
 
1. U.S. v. Adams
Rule: To be patentable, an invention must exhibit novelty, utility, and non-obviousness.
Analysis: In this case, Adams battery was found to be novel and non-obvious, and thus his patent was upheld as valid.
o   Novelty = the invention is new.
o   Non-obviousness = the invention cannot be easily made based on a prior existing thing by a person reasonably skilled in the prior art.