Intellectual Property & Litigation
Patents
A patent is an intellectual property right that is granted to an inventor by the government. A patent gives the inventor sole rights to the invention, and it excludes others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time in exchange for public disclosure of the invention when the patent is granted. Intellectual property right was established over 200 years ago and is a part of the United Sates Constitution. Under Article 1, Section 8 of the United States Constitution, it states: "to promote the science and useful arts by securing for a limited time to the inventors the exclusive right to their respective rights and discoveries."
In the United States there are three types of patents. Utility patents are granted to anyone who invents or discovers any new and or useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement. Design patents are granted to anyone who invents a new, original, and ornamental design for an article of manufacture. The last type of patent, is a plant patent. These patents are granted to any person who invents or discovers and asexually reproduces any distinct and new variety of plant.
Copyrights
A copyright is a form of intellectual property right that is granted exclusively to the author or creator of an original work. The range of the original work rights can include the right to copy, to distribute, and to reproduce. Like a bundle of rights, original works can be separately licensed, transferred, and assigned. In most cases, copyright applies to a wide range of works that are in a fixed medium.
Like patents, copyright has a limited time before the work enters the public domain. Copyright has been internationally standardized and can last between fifty and one hundred years from the author's death. Typically, copyright is enforced as a civil matter, although some jurisdictions do apply criminal sanctions.
Trademarks
Trademark is another form of intellectual property. A trademark typically takes the form of a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks that comprise of marks which do not fall into these standardized categories.
A trademark is a distinctive sign or indicator used by an individual, business, organization, or legal entity to identify their products or services to consumers. A trademark is a unique identifier and it serves to distinguish ones products or services from that of other entities.
Patent Infringement
Patent infringement is the use of a patented invention without the permission of the patent holder. Permission is usually granted in the form of a license. The definition of patent infringement varies by jurisdiction, but it usually includes the using and/or selling of a patented invention. Patents are territorial, and patent infringement only occurs in a country where the patent is in force. If an inventor has a patent for an invention filed in the United States, then others in the United States are prohibited from making or importing the patented invention. However, people from other countries are free to make the patented item in their own country, or in other countries where there is no patent on that invention. The extent of protection on a patent varies from country to country because the patent is examined by the patent office of each country or region. Each patent office have different standards when it comes to patentability, therefore a granted patent is difficult to enforce worldwide.
Under United States law, a patent infringement occurs when one has made, used, sold, offered to sell, or imported an infringing invention, or its equivalent. One also commits indirect patent infringement if one actively and knowingly persuades another to infringe. Types of indirect infringement include contributory infringement and induced infringement.
There is no patent infringement until the patent is issued by the country's patent office. However, there is pre-grant protection, which exists under 35 U.S.C. § 154(d) which allows a patent owner to obtain reasonable royalty damages for certain patent infringing activities that occurred before the patent has been issued. The right to obtain conditional damages requires the patent holder to show that (1) the patent infringing action occurred after the publication of their patent application, (2) the patented claims are significantly identical to the claims in their own published application, and (3) the patent infringer had knowledge of the published patent application.
InHouse Co. Law Firm has the legal experience to competently handle you or your company's intellectual property disputes. Whether monitoring and enforcing IP rights (including patents, trade secrets, copyrights, and/or trademarks) in the market, representing you or your company through IP litigation in trial and appellate courts, or navigating proceedings before federal regulatory bodies, we have the knowledge and resources to handle any job.
Trademark Infringement
Trademark infringement is the unauthorized use of a trademark. The owner of a registered trademark may bring legal action against anyone who uses his trademark without permission. However, a registered trademark is not always required. The owner of a common law trademark may also bring legal action against unauthorized users, but an unregistered trademark is only protected within the geographical area within which it is being used or in the geographical areas into which it may reasonably expect to expand to.
Copyright Infringement
Copyright infringement is the unauthorized use of works that is protected by copyright law. It involves the violation of a copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
The two most important defenses to copyright infringement are the first sale doctrine and fair use. The first sale doctrine is a defense to infringement of distribution right. First sale doctrine allows one who lawfully obtained a copyrighted work to resell or otherwise dispose of it. This defense is not usable when it comes to reproduction right.
Fair use is an affirmative defense. Its application varies greatly depending on the facts and circumstances of the case. When it comes to fair use, the courts apply a four part balancing test that examines the scope of infringement, the effect on the copyright owner's rights (for example, the owner's ability to sell the work), the amount of work copied, and the purpose of infringement. Courts have ruled that a non-commercial use is not fair use when it has a significant marker effect. In cases with small-scale impact, courts are more open to arguments regarding the effect on the copyright owner's market or potential market. Fair use is mainly used in the United States, and there are other common law jurisdictions and civil law jurisdictions that have more rigidly defined defense of fair dealing.