Utility Patents. New and useful inventions and configurations of useful articles

Transcription

1 COMPARATIVE INTELLECTUAL PROPERTY LAW CHART (Except as otherwise indicated, citations refer to U.S. Federal Law) (Intellectual Property Advisory No. 4) Intellectual Property has become important to many businesses. The following chart provides general information regarding significant features of the primary types of intellectual property. This Advisory is neither exhaustive nor tailored to your specific situation. You should discuss your personal situation with us or with your own attorney. Our representation is only undertaken through a written engagement letter and not by the mere distribution of this Advisory. Subject Matter Scope Commercial identification such as words, designs, slogans, symbols, trade dress Protects against creating a likelihood of confusion Original literary and artistic expressions such as Books, paintings, music, records, plays, movies, software Protects against copying, display, performance, and the making of derivative works; generally enforced worldwide; does not protect against New and useful inventions and configurations of useful articles from making, using, selling or importing the invention, or offering it for sale New and nonutilitarian designs, including configurations of otherwise useful articles from making, using, selling or importing the design, or offering it for sale Plant Trade Secrets Newly invented or discovered variety of asexually reproduced plants, other than tubers, or plants found in an uncultivated state from asexually reproducing the plant, and from using, offering for sale, importing or selling the plant so reproduced, or selling its parts Information that has economic value from not being generally known to the public, and is kept secret by means State law based property right to prevent others from possessing, using or disseminating in bad faith; does not protect against independent development in

2 Page 2 of 5 independent development in good faith Plant Trade Secrets good faith Purpose How to Obtain Rights Advantages of Basis for Protects owners and public from deceptive branding Use mark in commerce or apply for federal or state Nationwide proprietary rights; presumption of validity and ownership; U.S. Customs recordation; increased anticounterfeiting remedies (i) actual use of mark in interstate commerce; (2) intent to use mark in creative expression Create work and fix in tangible form; confirms rights Statutory damages and attorney's fees; prima facie evidence of validity; U.S. Customs recordation Modicum of Originality innovation Apply for of "Scope" as stated above Novelty, unobviousness, and utility innovation Apply for. of "Scope" as stated above Novelty, nonobviousness, and non-utility the cultivation of hybrids, sports, and mutants Apply for of "Scope" as stated above Distinct and new variety of plant innovation by providing an economic incentive Employ means to keep secret (disclosure on a need to know basis subject to instructions/ agreements as to its confidentiality)

3 Page 3 of 5 Notice Markings Term of Rights Infringement Prerequisites commerce followed by actual use; or (3) foreign owner's country of origin or application filed within 6 months, plus intent to use in commerce "TM" or "SM" if unregistered; or "Reg. U.S. Pat. & Tm. Off." Federally registered place near mark As long as used; s must be maintained by filing use declaration during 6 th year and renewal every 10 years optional or "Copyright" with year of first publication and name of owner, e.g Big Company, Inc., All Rights Reserved Creations after January 1, 1978; author's life plus 50 years, or if anonymous or work made for hire, earlier of 75 years from publication or 100 years from creation for U.S. nationals; optional for foreign nationals for" or "Pat. "Patent" or "Pat." plus 20 years from filing date (or sometimes 17 years from grant for older patents) subject to periodic maintenance fees for" or "Pat "Patent" or "Pat" plus 14 years from date subject to periodic maintenance fees Plant Trade Secrets for" or "Pat. "Patent" or "Pat." plus 20 years from filing date (or sometimes 17 years from grant for older patents) In appropriate circumstances, there may be a requirement to mark information so as to alert others that it is considered to be a trade secret and should be treated confidentially No limit, but will terminate once the information is generally known to the public Employment of means to maintain secrecy and bad faith by infringer

4 Page 4 of 5 Infringement Standard Political Scope International Likelihood of confusion, mistake, or deception as to source or sponsorship US & commonwealth create common law rights in markets where mark is used; in the, if registered Usually registered on a country-bycountry basis. European Community Trademark available use or copying (access plus substantial similarity) Generally given international recognition by treaty Usually protected without through international treaties manufacture, use, sale, import, or offer for sale of devices or processes embodying the invention; infringement not possible before patent issues Usually granted on a country-bycountry basis available under the Patent Cooperation Treaty or European Patent Convention manufacture, use, sale, import, or offer for sale of articles embodying the design; infringement not possible before patent issues May be available in other Plant Trade Secrets asexual reproduction of the plant, use, offer for sale, importation or sale of the plant so reproduced, or selling its parts May be available in other Bad faith possession, use, dissemination of trade secrets Property right may be recognized through application of choice of law As always, you should be sure that additional legislation has not been enacted or court decisions rendered, that would change the above advisements. This Advisory is neither exhaustive nor is it tailored to your specific situation. You should discuss your individual situation with us or your own attorney. We look forward to being of assistance to you and protecting your intellectual property. S. Timothy Buynak Business and Tax Attorney

5 Page 5 of 5 This Advisory is one of a series of business and tax advisories prepared by the attorneys at. Should you have further questions regarding the information provided in this Advisory, please contact the author listed above. provides business legal services to individuals, business entities and nonprofit organizations from entity formation and start up, through day-to-day operations and exit strategies.