COMAR LAW

LEGAL INFORMATION

BASIC INTELLECTUAL PROPERTY

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BASIC INTELLECTUAL PROPERTY PUBLISHED AND DISTRIBUTED BY KANDEVIN PRESS FIRST PRINTING AND DISTRIBUTION: JULY 2011 COPYRIGHT 2011 BY INDER COMAR RELEASED UNDER CREATIVE COMMONS LICENSE: ATTRIBUTION-NONCOMMERCIAL-SHAREALIKE 3.0 UNPORTED (CC BY-NC-SA 3.0)
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A B O UT COMAR LAW
With a particular dedication to trial and appellate work, COMAR LAW provides a wide range of legal services to individuals and companies, especially in areas of employment, intellectual property, civil rights and international law. COMAR LAW also helps clients with issues pertaining to public policy. For more information on services provided by COMAR LAW, please visit www.comarlaw.com.

Please note that the following information is NOT legal advice, and should NOT and should NEVER be relied upon as legal advice. No attorney-client relationship is created by reviewing this material. If you have legal questions or concerns related to the laws of intellectual property, please consult an attorney. This document is distributed through a Creative Commons BY-NC-SA License which means that this work may be freely shared, remixed, tweaked, and built-upon noncommercially, so long as credit is given to the original author and any new creations are licensed under the original terms. For more information on licensing, please see: http://creativecommons.org/licenses/by-nc-sa/3.0/. The specic terms of the license can be found here: http://creativecommons.org/licenses/by-nc-sa/3.0/legalcode.

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W H AT I S I N TELLECTUAL PROPERTY?
Laws protect property. A stranger cannot enter a persons home without permission, or remove personal items like a car or computer. Property laws make it possible for people to accumulate capital, start businesses, and contribute to society. Intellectual property is a special form of property that is produced by the human mind. Ideas, creative works, business secrets and brands have no physical reality, but they nonetheless possess value. In modern economies, intellectual property is a key driver of commerce and development. The law protects intellectual property because it wants to give people the incentive to produce and monetize world-changing ideas. Specically, the law recognizes that people who create intellectual property are entitled to certain rights, including the right to use and develop the intellectual property under monopoly or near-monopoly conditions. Someone who uses intellectual property without permission infringes that intellectual property, entitling the owner to damages or a court order preventing further use.

The United States Constitution grants Congress 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.

Two Examples Of Infringement

On March 5, 2011, the United States Court of Appeals for the Ninth Circuit ordered the shut down of the popular music sharing service Napster because of copyright infringement. Subsequently, college students the world over were forced to nd other ways to download music.

Research in Motion Ltd. was forced to pay $612.5 million in patent infringement damages after a jury found that it willfully infringed a patent held by NTP. A court-ordered shutdown was only averted through intervention by the United States Department of Defense.

There are four general forms of intellectual property: patents, copyrights, trade secrets and trademarks. We look at each in turn.

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T H E B A SICS OF PATENT LAW

A patent protects an idea by giving the patent holder a monopoly over use of the idea for 20 years. Anyone who wants to use the idea must receive permission (typically a license) from the patent holder. Patentable ideas usually emerge from problem solving. A new type of structure, process, apparatus or method may be patentable. More classical inventions, such as innovation in engineering, medicine, or in an algorithm may also be patentable. In order to be patentable, the invention must be novel (different from other patents) and unobvious (not obvious to someone skilled in the technology).

Famous Patents

The light bulb (Patent No. 223,898)

The safety razor (Patent No. 775,134)

The TV (Patent No. 1,773,980)

The United States patent system is rst to invent. Thus, its a good idea to keep track of your inventions in a notebook and have each invention signed by you and a witness.
W H AT C A N I D O ? W H Y I S T H I S I M P O RTA N T ?

Keep an inventors notebook to record new ideas. Date each idea, sign the bottom, and get a witness to sign as well. Track the importance of the idea (both to you and the market) in determining whether to le a patent application. How much would the competition pay to use your idea?

Good record-keeping of your ideas will help establish priority should someone else claim the same invention later in time.

Bigger breakthroughs and bigger market potential weigh in favor of securing patent protection.

Consider monetizing your patents by licensing the idea where appropriate.

Take advantage of the 20 year monopoly by licensing the idea to competitors or other interested parties.

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T H E B A S I CS OF COPYRIGHT LAW
Copyright law protects creative expression. Books, movies, music, pictures, websites and computer code are all expressive works that are protected by copyright law. Copyright law does not protect the idea behind the expression. However, copyright law is exible. Skin tattoos or the system of Bikram Yoga may hold valid copyrights under United States law (these claims have never been tested by courts).

Famous Copyrights (Reproduced For Fair Use Purposes Pursuant To 17 U.S.C. 107) The song, Happy Birthday To You The code to any version of Microsoft Windows

In order to receive the full benet of copyright law, authors should register their works with the United States Copyright Ofce. Registration serves as notice that the work is protected and entitles the author to damages between $700 to $150,000 for infringement.
W H AT C A N I D O ? W H Y I S T H I S I M P O RTA N T ?

Register your creative works with the United States Copyright Ofce.

Registration puts the world on notice of your copyright and entitles you to seek increased penalties. Policing your copyrights protects your work and

Send cease and desist letters to infringers as soon as you nd them.

may entitle you to retroactive settlements. The statute of limitations is 3 years to pursue an infringement claim.

Consider monetizing your copyrights by licensing derivative or display rights where appropriate.

Collaboration with other companies can increase brand potential and revenue.

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T H E B A S I C S OF TRADE SECRET LAW

A trade secret is any secret possessed by your company that (1) is not known by the public, (2) is subject to efforts to maintain its secrecy, and (3) gives your company a competitive advantage in the market. A cola formula, a proprietary algorithm, a key (secret) piece of computer code or the ingredients of a special glue or solvent are examples of trade secrets.

Trade Secrets Are The Secret Sauce Of A Product The proprietary manner in which a TV manufacturer produces its plasma screen television sets
Trade secrets do not have to be formally registered, but their value will be lost if they lose their secrecy. The most common way this happens is when employees leave your company and join a competitor. Thus, it is important that you dene your trade secrets and tell your employees not to take them if and when they leave your company.
W H AT C A N I D O ? W H Y I S T H I S I M P O RTA N T ?

Keep a list of proprietary information that you consider company trade secrets.

Afrmatively dening your trade secrets will force you to identify your critical proprietary information.

When employees leave, give them a condential list of your trade secrets and make them agree in writing that they will not use those trade secrets.

Former employees are forbidden by law to use your trade secrets with a subsequent employer.

If an employee begins using your trade secret, seek an injunction as soon as possible preventing disclosure.

If you fail to seek an injunction, you risk disclosure of your trade secret; once disclosed, the trade secret will lose all value.

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T H E B A S I CS OF TRADEMARK LAW
A trademark identies and differentiates your goods and services in the marketplace:

Famous Registered Trademarks

The symbol means that the mark has been registered with the United States Patent and Trademark Ofce. Registration provides key benets, including prima facie conrmation that the mark is valid nation-wide. Sometimes, you might see a brand that just has TM by it, instead of . TM means that the mark is unregistered: maybe it was rejected for registration, is in the process of being registered, or has yet to be registered. Unregistered marks still have rights under the common law, but are not as strongly protected as a registered mark.
W H AT C A N I D O ? W H Y I S T H I S I M P O RTA N T ?

Mark your trademarks and slogans with TM and your service marks with SM.

Identifying your marks gives you common law protection over trademarks, service marks and slogans.

Register your trademarks and service marks with the United States Patent and Trademark Ofce.

Registration gives notice that you are the owner of your trade- and service marks, and also provides greater rights in court.

Registration can take as long as two years and Be patient (and wary) of the registration process. your mark may end up being rejected by the Trademark Ofce.

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