Intellectual Property News

January 2008 Newsletter

The Doctrine of Intervening Rights
A patent is issued for a fixed term--14 years for design patents; 20 years for other types--during which the patent holder has a right to exclude others from making, using or selling the subject of the patent. There are, however, certain circumstances under which a patent claim may become ineffective for the purposes of enforcing exclusive patent rights against possible infringers. United States patent law allows a patentee to request a reissue of a patent, a procedure used when a patent as issued needs to be corrected. There may be an error in the specification that undermines the validity of the patent, or a patentee may determine that the scope of the patent as issued is narrower or broader than intended. As long as the error occurred without deceptive intention, the patentee may seek a reissue of the patent. More...

Indirect Patent Infringement
Patent rights are created by federal law and give an inventor the right to exclude others from making, using, selling, offering for sale, or importing a patented invention without the inventor's permission for a limited period of time. The making, using, selling, offering for sale, or importing of a patented invention without the inventor's permission is said to directly infringe the patent, for which the patent owner may be able to recover a remedy. Patent law also provides for indirect infringement of a patent. More...

The Lanham Act section 43a
The Lanham Act is the federal law that provides a national system of trademark registration and protects the owner of a valid trademark against the use of similar marks if any confusion might result. The Lanham Act is not the exclusive law governing U.S. trademark law because both common law and state statutes also control some aspects of trademark protection. The common law cause of action on which Section 43(a) of the Lanham Act is based is called passing off or palming off of goods and occurs when a producer misrepresents his or her own goods or services as those of another producer. More...

Trademark Dilution
A trademark is infringed when the mark or a similar mark is used in a way that is likely to confuse the public into believing that the trademark owner is the source or sponsor of products that it does not actually make or endorse. Trademark anti-dilution laws are intended to enable trademark owners to prevent the gradual weakening or whittling away of the strength of their marks, through blurring or tarnishment, even if the public is not likely to be confused. Until 1996, trademark dilution laws consisted of a patchwork of non-uniform state statutes and common law. In early 1996, Congress enacted the Federal Trademark Dilution Act (FTDA) to provide nationwide injunctive relief for diluting uses of nationally famous trademarks. More...

Substantial Similarity
Plaintiffs may establish copyright infringement by proving that a defendant had access to the copyrighted work prior to the creation of the allegedly infringing work and that the two works are substantially similar. Generally, once a plaintiff demonstrates access and substantial similarity, the burden shifts to the defendant to prove that the allegedly infringing work is not a copy but was independently created. More...

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