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

Chapter 1: WHAT IS “PROPERTY”?
Five Essential Questions about Property: Ways to explore complexity of property
(1) How was the claim of a property interest created?
                -What is the reason you own something?
(2) How is the property right transferred (or lost)?
(3) What bundle of rights does the property interest provide to the claimaint?
                -What exactly are you allowed to do with the property?
(4) What can the Government do to the bundle of rights?
                -What can government tell you to do with your property?
                -Legal rules what you can do with your property.
(5) What are the pragmatic consequences?
                -What do lawyers do with property?
● Property is completely defined by government, it is not a natural right. Existing governmental regulations control what you have and do with property.
● Notion of property changes over time, across cultures.
2.01 Intellectual Property: Its Creation and Value
[A]  Copyrights
United States Constitution Art. I, § 8, cl. 8 (Patents; Copyrights)          
●  Congress shall have Power…: To promote the Progress of Science and useful Arts, by securing  for limited Times to Authors (copyright) and Inventors (patent) the exclusive Right to their       respective Writings and Discoveries…
Einstein’s theory of relativity: Not patentable. 
                ● Interpret discovery in constitution to mean invention, not an idea. 
                ● Want scientific knowledge public for progress.  
                ● Liberal interpretation of constitution b/c of changes over time.
Vinyl Laptop Carrying Case: Not patentable.
                ● Not unique.
                ● Constitution protects inventions that promotes progress – this does not.
                ● Would be similar to patenting cotton shirt.
Literal translation of Shakespeare: Not Copyrightable.
                ● No artistic work.
                ● No progress promoted.
                ● No creativity. 
17 U.S.C. § 102 (from the Copyright Act)
Subject matter of copyright: In general. (a) Copyright protection subsists (exists) in accordance with this title, in original works of authorship (writing) 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 a 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 from 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.
                ● Copyright arises from creation of work. 
                ● Protects something original and fixed in medium, not ideas.
                ● Pl. has the burden of convincing the ct that the Register’s decision was not merely wrong, but     so clearly wrong that it was an abuse of discretion. 
CASE: OddzOn Products Inc. v. Oman
● Sometimes familiar shapes are copyrightable (Picasso’s painting of a sphere), but in this case      KOOSH ball is not. ● Tactile feel of ball rejected for copyright because of functionality – helping kids throw.
● Functionality is not copyrightable. Unique feel to ball, but it’s functional, :not creativity.
                ● Copyright is about artistic expression, not use.
● Color is copyrightable, but would not eliminate protection from competitors that they wanted.
● Patent would not work – it is not an invention. Too familiar an object.
CASE: Soutco- Numbering on Screws (Supplement) 
● Numbering on screws is not copyrightable. Not original or creative. Idea of the system cannot be copyrighted and the actual numbers on the parts are not copyrightable.
Dissent: Expression of ideas is copyrightable and that’s what the numbering system is. 
CASE: Pivot Point- MannequinsHungry Look (Supplement)
● Claims to copyright “hungry look” on beauty school mannequins.
● Def. argued that the features were functional and not copyrightable.
● Court distinguished “copyrightable applied art” from “uncopyrightable industrial design.”
                Look of mannequin could be subject to copyright if it existed independently of its function.  
● Majority held that it did exist independently and was copyrightable.
Dissent: Function of mannequin was inseparable from its look, because in beauty school, the look                is what its being used for.
[B] Trademarks (And Unfair Competition)
[1] Trademarks, Registered or Unregistered
Trademark: A name, symbol, or device that distinguishes the source of commercial goods or services. Like copyrights, trademarks arise automatically from use; they do not require any government action or registration to exist. But registration provides certain advantages. 
● Distinguishing mark, symbol or word that identifies the goods of one manufacturer from the goods of another manufacturer. Symbol of quality.
Can get trademark protection as long as it is not too similar to another trademark.
● If there is likely confusion with another mark, will not get trademark protection.
● Trademark protection is a property right; you own the trademark. The mark is protectable, not the product.
● Cannot use word that is “purely descriptive.” i.e. “Beer”
15 U.S.C. § § 1127, 1052, 1114 (The Lanham Act)
Requirements: A trademark by which the goods of the applicant may be distinguished from                                 the goods of others.
Consequences: Shall not be refused registration on account of its nature.
Exceptions: Unless, (1) when used in connection with the goods to cause confusion or                             deceive, (2) is merely descriptive or deceptively misdescriptive of them, (3) consists of any                                      functional matter.
Definitions: A mark can become distinctive, through use in connection w/ applicant’s goods                                  in commerce. Five years exclusive and continuous use is prima faci

● A general rule of distinctiveness is that an identifying mark is distinctive and capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness through secondary meaning.
● Eligibility for protection depends on nonfunctionality and requires proof of the likelihood of confusion. 
If the mark is inherently distinctive, then it easily qualifies. But if the mark is not particularly distinctive, distinctiveness depends on proof that the mark has some degree of public association with the source. Public association is called “acquired distinctiveness” or “secondary meaning.”
                Fanciful mark is not a word (Exxon);
                Arbitrary mark has no connection to the product (Apple); 
                Suggestive mark merely suggests the products identity (Coppertone); 
              Descriptive mark describes (Nice ‘n Soft);
                Generic identifications cannot serve as trademark (Beer). 
                Descriptive marks require more in the way of secondary meaning than fanciful or              arbitrary ones, because fanciful or arbitrary marks basically speak for themselves. If it is          a made up word or something arbitrary, and people know of it, they are not likely to           confuse it with anything else; they know it as it is. The other categories can be more          easily confused with other brands in the same product line.
 –Copyright and trademark are not verbs, because copyright is automatic. There is an act of registering the claimed ownership of these intellectual properties, but the property and its ownership spring into existence automatically.
–In contrast, Patent, is a verb and a noun.
[C] Patents:
Fundamental requirements of a patent:
(1) Novel – Invention must be new.
(2) Useful – It must do something useful.
(3) Nonobvious – Must not have been obvious to a person “of ordinary skill in the art” at the time invention was made.
Patents expire.
 Patent does not exist until it is registered and there are no property rights until patent is protected.  
             May use “patent pending.” 
In patent application, make a bunch of claims (try and make broad claims of what product is/does –
 can stop many others from doing it.) Don’t want to be so broad to get involved in prior art, or will 
 not get patent.
Patent suit: Use does or does not infringe. A patent unenforceable by law is not worth anything.
CASE: Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., Inc.
If the combination of old elements is obvious to those with ordinary skill in the art, then there is no valid combination patent.