Intellectual Property News

February 2008 Newsletter

Protecting Patent Rights
Patent rights extend from the U.S. Constitution and are defined by federal law to include the right to exclude others from making, selling or using the invention claimed in the patent. However, before receiving patent rights, one must file a patent application, meeting specific legal requirements, i.e. the invention must be new, useful, non-obvious and of patentable subject matter. In general, the types of things that may be patented are new and useful inventions that can be classified as machines, articles of manufacture, compositions of matter, processes, or any combination of those things. More...

Patent Applications Covering Multiple Inventions
If an application contains claims to more than one independent and distinct inventions, the United States Patent and Trademark Office (USPTO) may impose a restriction requirement. The applicant must then decide which invention to pursue within the application process and whether to file a divisional application claiming the non-elected invention. A restriction requirement is generally imposed when the claimed inventions are too distinct to justify practical co-examination. Another reason is to maximize payments to the USPTO of the statutory fee and to preserve the integrity of the classification system within the USPTO.
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Choosing Trademarks
The spectrum of trademark distinctiveness goes from fanciful marks, which are very protectable, to generic trademarks, which are not protectable. In trademark usage, words can be classified according to the degree of their distinctiveness. The exclusive right to a trademark comes from its use related to consumer identification of the goods or services associated with the trademark. When choosing a protectable trademark, more weight should be given to highly distinctive marks. Choosing trademarks that are fanciful, arbitrary, or suggestive because they are considered distinctive enough to function as trademarks. More...

Fair Use of Trademarks
A party is entitled to use a trademark in such as way as to describe the qualities that a mark represents, as long as the use of the mark is not in a trademark manner but in a descriptive sense. Fair use of a trademark occurs when a defendant uses a descriptive trademark of another party to describe the defendant's own product. This is the fair use defense set forth in the Lanham Act that provides that it is not an infringement when the use of a trademark (name, term or device) is not used as a mark but which is used in a descriptive sense and used fairly and in good faith to describe the goods or services of the party. More...

Works of Authorship under Copyright Law
The Copyright Act uses the phrase "works of authorship" to describe the types of works that are protected by copyright law. This phrase is purposefully broad to avoid the need to rewrite the Copyright Act every time a new "medium" was discovered. More...

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