Intellectual Property (Class #4) July 1 [notes]

[hermionesviolin]

usefulness

patent application for a chemical process similar to a really useful steroid but itself not demonstrated to do anything useful

court said: "a patent is not a hunting license.  it is not a reward for the search, but compensation for its successful conclusion."

back in the day, birth control devices (and gambling devices) were denied patents on the ground that they promoted immorality

1) the idea of deceiving people into -- well, not deceiving people -- but the idea of presenting something that LOOKS like something but isn't, is itself useful (e.g., nylons with decorative seam)
deception, or imitation of something, in and of itself is not reason to deny a patent
"Look, we're not the Consumer Protection Agency."

very few patents are denied because they lack utility

non-obviousness

jack-o-lantern case
U.S. Court of Appeals for the federal circuit - subject rather than geographic (patents and trademarks ... not copyright) only court authorized to deal with appeals dealing with patents (and trademarks)

The idea was that by building up this body, you would get consistent results and well-informed results.
Court has become extraordinarily sympathetic to claims of patent holders -- eager to uphold patents, eager to find them infringed, etc.

after the court is created (trend, from 50ish to 78?%)

Demizac - jolly leafbag pumpkin
Supreme Court reverses the patent rejection
you cannot determine obviousness in hindsight
have to find teaching, suggestion, or motivation to combine the children's art reference with conventional

2yrs ago, the SC ("as part of this unannounced but very real real effort to cut back on the strength pf patents") KSR International - in which the Court rejects the idea that there must be a teaching
way the accelerator communicates with the throttle
don't need a mechanical link; could be done electronically with computers
what if you integrate the sensor with the gas pedal -- integral part rather than attached
Teleflex files an infringement action vs. KSR's patent application (Teleflex is the patent holder on the sensor itself)
court says Teleflex's patent is invalid because obvious

patent application has to:
(1) disclose what the invention is (describe how it works from beginning to end)
often accompanied by drawings
(2) has to state what is being claimed
(3)

***

"patent prosecution process" ("has nothing to do with criminal prosecution -- because [as stated earlier, when reading some Claims on a patent] patent lawyers don't speak English")

when you sue someone for patent infringement, defense will be (1) I'm not infringing your patent; (2) your patent is invalid
you can't get into a patent suit these days for less than $1M, and that's just an entry fee
- only have to prove one of your claims is being exactly copied

damages for "willful" infringement are tripled ("winning the lottery")
so, often people while creating something will solicit an opinion letter

in recent eBay case, court said presumption of injunction is inappropriate

maintenance fee weeds out abandoned patents
Patent office operates at a huge profit

Trade Secrets
any information that gives you a competitive advantage by virtue of its being a secret

State Laws
Uniform Trade Secret Act -- 47(?) states have adopted it

first recognition that Trade Secrets could be intellectual property was in Massachusetts -- 1940s?

[student questions during the break]

SuperSoaker
Larami v. Amron, 1993
"two sides going at each other, firing at each other with, as it turns out, water guns"
decision: no infringement because original has chamber inside gun, other has exterior chamber
people will often list alternate claims in their application and see which is upheld

you have to be the inventor to file an application

[and back to the lecture]

if someone misappropriates your trade secret, you have the right to sue

-> misappropriated?
- have to take reasonable measures to protect the secrecy of that info
Vortek case (boilers/furnaces)
several employees left and started their own company and use the same metallurgical process
defense argued that the 1st company had disclosed to a repair company

there are ways to file documents under seal [so yes you can bring someone to court and not have to make your trade secret even more public in the process]

Rockwell Graphics System - large defense contractor (airplane parts)
blueprints etc. in vault, ~200 employees, not much of a tracking system

-> improper means

duPont v. Rolf, 1970
chemical plant (the layout of which they wanted to keep secret), 6-foot fence (prof suggested an 8-foot fence might have been a more sensible idea), two guys hire a charter plane
prof: "in a massive miscarriage of justice, duPont wins, to which I say 'Pshaw' -- or words to that effect."

prof says: they can't just keep it a secret from people who are 5 feet tall, or people without access to plans

- if you obtain info through someone else's misbehavior (e.g., employee blog)
- are software user agreements binding? ("shrinkwrap agreements" ... reverse engineering)

disclosure
e.g. government-compelled
what if first company is merely careless (taxi -- "in this envelope is the secret formula to my main competitor's flagship product.  Today is my lucky day."  prof suggested the answer would be: sorry, Charlie)

confidentiality agreements
are non-compete agreements okay?  yes, if reasonable time period, geographic scope, etc.