Intellectual Property News

May 2007 Newsletter

Patents and Infringement Actions
Patent Rights

A patent is a property right that the federal government gives to an inventor with respect to an invention in exchange for his full disclosure of how to make, use and practice the invention. The property right granted by the government is the right to exclude others from making, using, selling, offering for sale, or importing the patented invention without the inventor's permission for the limited period specified by the patent statute. A person or other entity that makes, uses, sells, offers for sale, or imports the invention covered by the patent may be liable for violating the patent owner's rights through a legal theory referred to as "infringement". Patent infringement is classified by the law as a "tort," which is a wrong committed by a person against another person for which the law provides a remedy. More...

Defending Patent Infringement Actions
As stated previously, a grant of a patent allows an inventor to exclude others from making, using, selling, offering for sale, or importing the patented invention into the United States without the inventor's permission for a limited period of time. Patent rights are granted by federal law, which also provides that an inventor whose patent is infringed may seek a remedy in federal court. There are several defenses to patent infringement that may be asserted by one who is sued for patent infringement. One defense that not only will negate infringement liability but will also destroy the validity of a patent is inequitable conduct on the part of the inventor in procuring the patent. Another defense is Laches and estoppel and a third defense is the shop rights doctrine. More...

Confronting Consumer Confusion
The hallmark of Trademark law is consumer confusion. The law protects the use of a mark in business from other users of other marks, or the identical mark, in confusing ways. Because trademark law seeks to proactively prevent consumer confusion, it does not require proof of actual consumer confusion to bring an infringement action. All that is necessary is that the trademark owner prove that a there is a likelihood of confusion based upon a hypothetical, "reasonably prudent" consumer who would likely be confused by the use of the same or a similar trademark, as the alleged infringer, on potentially competing products. The hypothetical purchaser is not expected to make detailed, side-by-side comparisons nor are they required to have perfect recall regarding what they observed. More...

Developing Strong Trademarkable Brands
In today's economy, trademarks are a valuable business asset which can be leveraged to maintain strong consumer awareness within the marketplace. However, not all trademarks are created equal. The stronger marks include marks which are arbitrary, fanciful and distinctive. These marks can be broadly protected. 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...

Digital Copyrights
The laws related to digital recordings is continuing to evolve. As a result of recent changes in the Copyright laws, the owner of copyright has the exclusive rights to do and/or authorize another, in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. This provision was added to the Copyright Act by the Digital Performance Right in Sound Recordings Act of 1995 (DPRA). More...

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