Copyright © 1997, 2001-2002 Jay M. Tyndall (Unless Indicated Otherwise)

United States Intellectual Property Law Overview

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The Protection of Ideas

The Movement from Idea to Federally Protected Right:

In the Context of Works of Authorship
Ideas   »»»   Common
Law Copyrights
  »»»  Copyrighted

In the Context of Utilitarian Inventions

Ideas   »»»   Trade Secrets      
(State Protection)
  »»»  Patented Subject Matter
(Federal Protection)      

In the Context of Commercial Source Indications

Ideas   »»»   Unfair Competition
(State Protection)      
  »»»  Trademarks                        
(Federal Protection)

Problem  »»»  
  »»»   Copyright
  »»»   Patent
Question   »»»   Trademark

Major Topics Relating to the Protection of Ideas

I.Idea Misappropriation
II.Contractual Theories Relating to the Protection of Ideas
III.Contractual Protection of Ideas and Conflict with the Federal System

Idea Misappropriation

Murray v. National Broadcasting Co., 844 F.2d 988 (2nd Cir. 1988)

Contractual Theories Relating to the Protection of Ideas

  1. Breach of an Express Contract
    • This is simply an action for breach of a contract to provide compensation for the disclosure and/or use of an idea.
      • All the elements for a valid and enforceable contractual agreement (assent and definiteness, offer and acceptance, consideration, a properly executed writing [where the Statute of Frauds is applicable], and the legality of the subject matter) must be present for the existence of an express agreement to be proven. The discloser must then also succeed in showing the breach of that express agreement.
        • Assuming that a valid express obligation exists, a plaintiff will be required to show a causal connection between the initial disclosure and the alleged wrongful possession and/or use of his idea by the defendant.
          • If the idea in issue was disclosed to the recipient independently of the express agreement by a third party, for example, there will not have been a breach.
        • In some jurisdictions, novelty is a requirement for finding consideration in an express agreement. In others, particularly California, it is not.
          • In jurisdictions which do not require novelty, examining the adequacy of consideration bargained for at arm's length by the parties is seen as wholly outside the courts' role.
          • The jurisdictions which do require novelty reason that the transfer of something which is already equally available to all cannot be consideration for an agreement.
            • New York currently distinguishes between novelty generally in property based claims and novelty to the recipient in contract based claims.
              • Only the latter need exist for there to be consideration in an agreement, unless the idea is so widely known that prior knowledge of it must be imputed to the recipient. This is because an idea which is non-novel in an absolute sense may still have substantial value (e.g., savings in time and monetary resources for development and/or implementation) to a particular recipient.
          • Determining whether or not there is an implied requirement of novelty in an express agreement is another approach sometimes used by courts.

    • Consider that providers of certain services, marketing consultants, for example, rarely produce entirely novel ideas.
      • Their ideas must be differentiated outside of intellectual property doctrines from those of private individuals by using the terms of express agreements.

  2. Breach of an Implied-in-Fact Contract

  3. Quasi-Contract, Unjust Enrichment, Breach of an Implied-in-Law Contract

Lueddecke v. Chevrolet Motor Co., 70 F.2d 345 (8th Cir. 1934) Yadkoe v. Fields, 66 Cal.App.2d 150, 151 P.2d 906 (1944)

Contractual Protection of Ideas and Conflict with the Federal System

Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979)

Brulotte v. Thys, 379 U.S. 29 (1964)

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Copyright ゥ 1997, 2001-2002 Jay M. Tyndall (Unless Indicated Otherwise)