Intellectual Property News

October 2008 Newsletter

Patent Law: Written Description
One of the most important aspects of the written description is to provide a clear description of 'for what" patent protection is being claimed, which may consist of several elements, or claims. The claims define the boundaries of what is to be protected by a patent, and, in a patent infringement action, the analysis of whether a patent has been infringed will begin with a construction of the claim language to determine whether an aspect of an invention is protected at all. In addition, the written description of the invention serves the main objective of patent law by placing into the realm of public knowledge the new ideas embodied by the invention. More...

Analyzing Patent Claims
Patent claim interpretation is the process of giving proper meaning to the claim language. Claim language defines claim scope. Therefore, the language of the claim frames, and ultimately resolves, all issues of claim interpretation. In determining the meaning of disputed claim terms, however, a construing court considers the written description, the drawings, the prosecution history, and extrinsic evidence. These additional sources provide a context to illuminate the meaning of claim terms. Nonetheless, throughout the interpretation process, the focus must and does remain on the meaning of claim language itself. The construction of all of the disputed terms of the claim will govern the court's validity and infringement analysis at all stages of the case, including trial. More...

Personal Names, Descriptive Terms, and Generic Words
The weakest and least-protected marks are personal names, descriptive terms, and generic words. Distinctive business names usually receive protection under federal and state trademark law. Common or ordinary names usually do not receive protection under federal and state trademark law. More...

Trademark Fair Use
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 manner of use of the mark is not as a trademark but only used 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: the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark...of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin. More...

Copyright Reproduction Rights
The reproduction right is one of the exclusive rights granted to the owner of a copyright by the Copyright Act. Under this right, no one other than the copyright owner may make any reproductions or copies of the work. Under the Copyright Act, the copyright owner has the exclusive right to reproduce the copyrighted work or to authorize its reproduction. Examples of unauthorized acts which are prohibited under this right include photocopying a book, copying a computer software program, using a cartoon character on a T-shirt, and incorporating a portion of another's song into a new song. The Copyright Act covers reproduction in any form. More...

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