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

United States Intellectual Property Law Overview

E-mail comments to -
site_management@transjurlex.com

The Property Theory

• "Intellectual Property" represents something different than other types of property because its intangible nature requires nonpossessory, nontitle recognitions of ownership.
• The legislation which provides this recognition stimulates economically productive creative activity by protecting as property information, processes, devices, symbols, and expression when they take certain forms.
  • The policies which guide such legislation balance the economic harm caused by the monopoly effects of the property rights granted against the economic benefit of the creative activity which they ultimately stimulate.

• In implementing policy determinations, intellectual property laws must set standards for novelty or expressiveness which must be met before protection in the form of property rights can be granted.
• These standards do not provide rewards for mere effort (i.e., the "Moral Rights Theory" is not a recognized basis for granting property rights).
• Protection is also based on primacy of achievement.
• First and last, the legal protection of intellectual property in the U.S. should be viewed as forming an economic incentive system.
  

Copyright

• Copyright is, literally, the "right to copy"
• Neither ideas in and of themselves nor the ideas which go directly into creating a work are copyrightable.
• The expression of ideas in tangible form is the subject matter which can give rise to property rights.
• Materials which can be protected include artistic designs, literary works, written or recorded music, software, and subject matter in many other forms.
• The copyright system is designed to encourage an abundance of expression.
• No qualitative judgments regarding this expression are made by the law. Protection for all original works is the governing policy.
• The term of a copyright is generally the life of the author, plus 70 years. If the copyrighted work was made for hire, then it is generally 95 years from publication, up to maximum of 120 years from the date of creation.
• The existence of copyright protection and whether infringement has occurred are the primary areas of dispute under American copyright law.
• In making their own assessments on these issues, individuals should ask themselves, with regard to the existence of protection, whether the subject matter involved is a mere idea and, with regard to infringement, whether protected expression has been copied.
• Recording System: Copyright Office, Washington D.C.. Copyrighted works are indexed and searchable by type of work, author, title of work, claimant, registration number, ISSN, assignor, assignee, and/or document number.

Patent

• A patent is a legal "monopoly" given to mechanical designs and other utilitarian subject matter.
• Patent law makes qualitative judgments. The subject matter must be new, useful, and non-obvious.
• Innovation substantially beyond the pre-existing level of art is required for the grant of a patent in order to avoid economically rewarding stagnation of the threshold of technological advancement.
  • One major consequence of this policy is that a great deal of competitive effort directed toward inventive development ultimately goes unrewarded from the standpoint of intellectual property rights.
• The term of a patent, subject to various grounds for extension, runs twenty years from the date of the application, with the exception of a design patent, which runs fourteen years form the date of its grant.
• Recording System: Patent and Trademark Office, Washington, D.C. Patent recordation is categorized by type of invention. When seeking patent protection for a new invention, it is virtually always necessary to check these records in order to assure that infringement of existing patent rights is avoided.
  

Trademark & Unfair Competition

• Product names, logos, commercial designs, slogans, and aspects of advertising or marketing are protected as intellectual property based on their use in commerce in conjunction with the offering of goods or services.
  • No protection is given for merely descriptive or generic indications of commercial source.
  • Distinctive expressions, however, may be protected, even if they are descriptive.
  • The term of a trademark registration is ten years, renewable perpetually, assuming continued commercial use.
• The association of quality or certain commercially desirable traits with a company's trademark is often the basis for repeat sales.
  • Such associations may also carry over to that company's other products.
    • Rights in these associations are protected by the anti-dilution provisions of the Trademark Act.
• Federal unfair competition law protects merchants from false representations as to the source or nature of their goods and services.
  • This may implicate traditional indications of source, trade dress, and non-functional elements of product design, as well as truth in advertising.
• Recording System: Patent and Trademark Office, Washington, D.C.. Trademark registrations are recorded by International Class, so as to correspond to the goods and/or services in relation to which they are used. Registrations are searchable by a number of fields.
  

Constitutional Authority for Federal Intellectual Property Legislation | The Protection of Ideas | Back to United States Intellectual Property Law Overview

Home

Nothing in this site is intended in any way to constitute legal advice or to create an attorney-client relationship. The author, Jay M. Tyndall, shall not be liable for any damages of any type, whether actual or consequential, which may arise from the use or reliance of any reader on the content of this site or any site to which it links. No guarantee or assurance is made that any information transmitted to or via any unsecure portion of this site will remain confidential.