Patent Outline

INTRODUCTION
 
Contract theory of patents: Disclosure of a technological advance in exchange for the right to exclude others from employing it. Encourage innovation. Disclosure for limited monopoly of 20 years, then public domain.
 
Requirements for patenting. You are entitled to a patent unless your invention is covered by §102 (a)-(g), or is obvious under §103.
 
Patent term. 
Before June 8, 1995 – issue date + 17 years
After June 8, 1995 – filing date plus 20 years
Change is due to ratification of the Uruguay Round of GATT. Before that, US was only country that counted patent term from date of issue instead of filing date.
 
Historical Developments in patent law.
§         Depression era. Patents found invalid under antitrust laws; very hard to receive patent.
§         Post-depression and world wars. Misplaced antitrust priorities and subjective inventiveness tests (“flash of creative genius”) eroded the incentives of the patent system
§         Patent Act of 1952. “flash” replaced with §103
§         1960s – 1970s – confusion in the courts over patent cases
§         1982 – Ct App Fed Cir came into law and adopted the law of the CCPA as binding precedent; Ct App Fed Cir was the major overhaul needed to correct patent problems.
§         Present – anti-patent climate has cooled off, but with reemergence of mergers, anti-patent sentiment might crop up again
 
South Corp v US 690 F.2d 1368, p16
–          every patent case on appeal goes to the Fed Circuit Appeals Court (in DC)
o        Ex: not 6th Circuit as would a Fed case in Mich
–          Circuit Court changed to Fed Circuit in 1982
 
Forms of IP protection.
Patent: process, machine, manufacture, Composition of matter
–          1st to invent wins!
–          20yrs from date of file
–          Published, becomes public knowledge
o        35 USC §101à seeking a utility patent           
o        35 USC §161à Plant Patent Act – you cant market it, but you can do research on it
§         this case says you can get both
–          Can get a utility patent on a hybrid
 
PVPA :Can get a PVPA certificate from the Department of Agriculture for the seeds for 20 years. (25 to for trees and vines). Must be sexually reproduced.
 
Plant Patent: Must be asexually reproduced. Term is same as utility patent
 
Copyright: original works of authorship fixed in a tangible medium of expression
–          2 identical works can both be copyrighted (if they’ve not been copied from each other)
–          Life of the author + 70 yrs
–          In patent law, you don’t have to copy from someone to be infringing. In copyright, you have to actually COPY.
–          Fair use privilege- allows fair use of copyrighted work, educational activities, news reporting.
 
Trademarks:
–          Made for the use of the consumer (easy to identify)
–          Idea is to protect the consumer
–          Can last forever as long as you police it well
–          Infringement for trademarks are “likelihood of confusion” and the term is indefinite. The term is no longer since it is from consumer protection. If the trademark becomes too regularly confused, you can lose your trademark.
–          If the mark becomes too generic, then we are no longer going to give theme their mark.
 
Trade Secrets: Secrets held w/in a co.
Ex: Coke’s formula
–          Can keep it forever if you keep it secret
–          Once it is out, it’s out and you can not get a patent unless it is less than a year.
–          Made through contract of non-disclosure requirements
–          2 requirements
o        1. Information must have been subject of reasonable efforts to maintain secrecy.
o        2. Information must derive commerc