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Intellectual Property
West Virginia University School of Law
Olson, Dale P.

INTELLELCTUAL PROPERTY – Olson
 
 
Chapter 1: Introduction
 
– Costs related to maintaining IP rights:
                – acquiring patent
                – litigation
                – maintaining rights
 
– IP rights are not well-defined, as compared to actual property rights
 
– If you lose in IP case, may have to pay other party’s attorney’s fees.
 
– IP is different in that it is intangible and can be possessed by many simultaneously
 
–                      – Difficulty is in “owning” the intellectual property.
§         More specifically that it can be shared, in cases such as drugs there can be compounded
§         The recording industry’s difficulty is that it is very easy to copy the material, and the manufacturer does not know (at least not immediately)
§         For every copy sold legally, nine copies are acquired unlawfully.
§         In movie area, this number is probably much greater.
§         One difficulty that all these industries face is that the majority do not think that this conduct is wrong.
 
–                      – Availability of Look-alikes and its affects on the market
§         The greater the number of look-alikes, the less popularity due to the exclusivity element.
§         Cheapening of the brand, if a look-alike looks raggedy then the brand name itself will look cheapened.
§         When this happens, the brand can survive or die.
 
–                      – The value of the property is actually is the knowledge, it can further be explained as to protect an investment.
–                      IP has become so significant in part b/c the cost of licensing becomes nominal when you are licensing out to other companies.
§         First you must have something that the public would want to buy.
–                      Copying usually only occurs on the hits, so what is being copied is what is most popular.
–                      Technology has changed in unimaginable proportions. 
 
–                      So reality of enforcing the IP right has to be considered
 
–                      A rt. to ownership is embedded in the Constitution e.g. eminent domain issue. Thus tangible property is taken more seriously in the US than IP.
 
–                      Laws/Const provide for protection of IP. IP protection is not funded (as such) by govt. However individual pursue the action by their own initiative and govt. provides protection but no direct govt. subsidiary.
 
–                      So individuals/corporation pursue protection and it is granted for a limited time, after which the invention enters the Public Domain (PD)
 
–                      Public domain is not a public property like state or Public Park. PD is an environment to type of property where there is no owner or everyone owns and there is no one person with a greater or lesser right than other.
 
–                      Sup. Ct. has said no “special property” exists. So once a protection expires, anyone, without payment or permission, may use or publish the work. E.g. Aspirin can now be made by anyone, it is in the PD.
 
–                      Museums having products on display that are already in the PD still have returns.
Eg. To charge admission, restrict or limit access, etc.
 
–                      IP rights are not exclusive
 
–                      Fact that a movie is a porn or sexually explicit does not exclude it from protection (5th Circuit). Producing dirty movie is protected under the 1st Am.
 
–                      Ideas are not subject to © protection; e.g. Fast food idea by McDonald brothers; also clothing design not subject to © protection and can be copied, e.g. can look at a design by Nike and copy it; all subject to clear legal concepts like trademarks.
 
–                      © and Patent protections are statutory. Certain industries like music industries have pressured Congress to provide protection. © and Patents are only obtained through compliance and formalities: filing, paying patent fees; they are technical and expensive; Fairness is not an issue.
 
 
A)      Philosophical Perspectives
 
1.       The Natural Rights Perspective
–          John Locke, Two Treatises on Government
–          someone who creates something is entitled to hang on to it
–          the law does not protect someone from a bad bargain – must look out for yourself
–          just being a “creator” is usually not the only objective
1.       most people want to make $
–          God given right to hold on to what you create
1.       our government usually doesn’t see it that way
–          last ¶ – Locke makes analogy to the things people collect in nature (acorns) to asserting actual property rights over them
 
Comments & Questions (pg. 4-5)
 
4.                   – European community protects IP rights like Locke: broader time
– Moral rights are non-economic rights
 
Problem 1-1 (pg. 5)
– What rights do the indigenous people have?
                – Presumable none
– What rights do / should people have? Gen governed by contracts
– At the outset, the law will not step in and give you rights. You must acquire them.
– How much is too much?
                – Humanitarian purpose?
– There is no enforceable legal right to particular types of songs.
                – no specific person has a right to hold on to a particular sound, instrument . . . etc.
                – just can have rights to a specific composition
                – rights are based on specific statutory rights
– When someone uses your work by inference?
                – possible fair use?
                – fuzzy area – lots of ambiguities
                – Parody?
                – In certain instances, there are certain times when you can use someone else’s IP
                                – Political speech
 
– Internet and file sharing has dramatically changed the equation b/c of consumers.
– Record company is changing – is in trouble.
– © – copyright = info. Distribution
– ® – definition of market area; markets run together online
– Privacy – distribution / recovery; manipulation of images
– Whistleblowers in trade secrets: once secret is out, remedies would be incomplete because the info. is already out
Can one use another’s product name in advertising e.g. “Similar to Cleridin®” when selling a generic product: You are free to make truthful statements about your product.
 
3.       The Utilitarian / Economic Incentive Perspective
§         The Constitution expressly conditions the grant of power in the patent and copyright clause on a particular end, namely “to Promote the Progress of Science and useful Arts.”
 
§         To profit from a new idea or work of authorship, the creator must be able either to sell it to others for a price or to put it to some use that provides her w/

hts are available, e.g. North America rights. Typically don’t have a world wide right.
 
 B.) Overview of Intellectual Property (pg. 19-26)
– Principal modes of intellectual property:
§         trade secret
§         patent
§         copyright
§         trademark / trade dress
§         related state law doctrines
 
1.       Trade Secrets
o        Trade secret laws are state law doctrines that protect against the misappropriation of certain confidential information.
o        They are more akin to traditional tort and K law than to patent or copyright law.
o        Most states today protect trade secrets by statute
o        The basic purpose behind protecting trade secrets is to prevent “theft” of information by unfair or commercially unreasonable means.
o        The definition of subject matter eligible for protection is quite broad:
§         Business or technical information of any sort
o        To benefit from trade secret protection, the information must be a secret
§         Only relative and not absolute secrecy is required
o        The owner of a trade secret must take reasonable steps to maintain its secrecy
§         Trade secrets have no definite term of protection but may be protected only as long as they are secret, e.g. Coca-Cola formula goes back to 1880.
§         Once a trade secret is disclosed, protection is lost.
§         Courts will rind misappropriation of trade secrets in 2 circumstances:
§         where the secrets were obtained by theft or other improper means, or
§         where they were used or disclosed by the defendant in violation or a confidential relationship
§         trade secret laws do not protect against independent discovery or invention
§         nor do they prevent competitors form “reverse engineering” a legally obtained product in order to determine the secrets contained inside
§         violations of trade secret law entitle the owner to damages and in some cases injunctions against use or further disclosure.
■ Class notes on Trade Secret:
–          protection relies on self help
–          Fed. Penalties in place for violation of trade secret laws, separate from K breach
–          cheap to create and maintain
–          perpetual
–          bad in that anyone who develops the same formula can use it
–          oldest – drum symbols (Turkey) – 400 years ago
–          most are that valuable
–          GE – only firm that can create (bench trade???) diamonds
–          More common trade secret is a salesperson’s notes
1.       notebook; laptop
2.       sales – knowing who is who is crucial
3.       customer list (very common)
–          Means of protecting
1.       keeping it secret
a.       locket up (literally)