Do It Yourself Copyright

 Have you ever written a computer program, song, article, painted a picture, taken a photo, designed unique jewelry, or other work, and wondered if you should copyright it?  There is good news:  copyright law, unlike patent law, protects a work as soon as it is fixed in a tangible medium.  For example, as soon as an artist paints a picture, the picture is protected by copyright.  Now you may wonder, why register the work?  There are substantial benefits to registration.

The Value of Intellectual Property

Intellectual property has almost limitless value.  Microsoft Corporation has a stranglehold on computer operating systems due to its intellectual property.  If the Windows™ operating system could be freely copied, Microsoft would be devastated.  If the Coca-Cola Company did not obtain and enforce its many trademarks, we might all be drinking Pepsi™.  Intellectual property protection promotes growth by limiting competition.

How Every Business Should Protect Its Trademarks

Identity theft is something we all hope never happens to us.  The recommended steps to prevent identity theft include carefully protecting financial documents, periodic monitoring of our credit reports, never giving out our social security number without good reason, etc.  Trademarks should also be carefully guarded, because they are your business identity.

Patent Reexamination Procedure

Patent Reexamination is a procedure by which the USPTO reconsiders the validity of the claims of an issued patent in view of prior art which was not considered during the original prosecution.  This article will discuss the patent reexamination procedure, and a later post will discuss some of the advantages, disadvantages, and possible consequences clients must consider when filing for reexamination.

Procedures for Invalidating, Clarifying, or Narrowing a Patent in the Patent Office Under the America Invents Act

Prior to AIA, there were two ways for a third party to invalidate a patent in the patent office:

• Interference under 35 U.S.C. § 135 & 37 C.F.R. § 41.202, which was extremely limited, as it required:
  1. Must have a patent application on file with claims drawn to the same invention as the patent;
  2. Patent office must agree that the claims are the same; and
  3. Must prove earlier invention and first to file won 90 percent or so of the time.

Is Your Wine’s Label Properly Cleared?

Copyrights cover a work, such as a picture, a painting, a literary work or a video, and trademarks cover a word, slogan, phrase, logo, image, or sound when used in connection with a good or service, such as wine or clothing. Although copyright and trademark can appear to overlap, they are separate and distinct types of protection. Ownership of a copyright on an image does not mean you own that image as a trademark, and ownership of a trademark that uses an image does not mean you own a copyright on the image.

Obtaining a COLA is Not Enough to Ensure the Right to Use a Mark

Providers of goods and services often use descriptive terms, including geographic terms or place names to inform consumers about the origin, nature, or quality of their goods and services. Napa Valley is without a doubt one of the most recognized and highly regarded viticultural regions in the United States. So it is no surprise that wineries would go to great lengths to associate their wine with the Napa Valley appellation, even if their wine does not truly originate from there. Unfortunately for the Bronco Wine Company, their efforts to use the term “Napa” in their trademarks “Napa Ridge” and “Napa Creek Winery” were deemed to mislead consumers.

Cease-and-Desist Letters in Intellectual Property Disputes

Cease-and-desist letters seem to have become the tool of choice among attorneys who want to provide notice of a claim and to initiate a dispute in the hope of resolving it in its infancy. However, and particularly in intellectual property disputes, attorneys need to consider several pitfalls before hitting the send button on a fax machine or e-mail screen: if you threaten to sue, can your client be sued in an inconvenient forum under Federal Declaratory Judgment Act?^[1] In Patent disputes, can you avoid a declaratory judgment action and still provide adequate notice of infringement, which is a prerequisite for obtaining damages if the client did not mark its product with a patent number? In how much detail should present your analysis and allegations in order to be convincing—without limiting your options or disclosing too much? Is it wise to tip off the recipient just yet, or should further investigation or preparations be undertaken? Should the letter also be sent to third parties, such as customers of an infringer, or would that constitute wrongful interference? To an intellectual property lawyer sending a charge-of-infringement letter, these are all critical considerations.

Tailoring Nondisclosure Agreements to Client Needs

Nondisclosure agreements, also known as NDAs or confidentiality agreements, are vital to the exchange of technological and business ideas. As recently reported by the Wall Street Journal^[1], Silicon Valley conversations—even at cocktail parties—often begin with a request: “Sign this form, please.” Without NDAs, however, inventors or other creators of new business methods would be unable to disclose their ideas or information to potential investors, coinventors, executives, buyers, consultants, or developers. This is especially true in the computer world, where ideas can be appropriated very quickly.

Stretching Your Practice: Electronic Searching and Filing of Trademarks

Most business or general attorneys regard intellectual property (IP) as an enigma. This is especially true when it comes to patent practice. After all, there is a separate “patent bar” required for representing patent applicants in the U.S. Patent & Trademark Office (“PTO”). By contrast, a trademark applicant can be represented by any lawyer. Accordingly, all lawyers can potentially file trademark applications. For those who want to venture into trademark law, and in particular for those who want to perform trademark searches and/or file trademark applications, I am writing this article to help you spot important issues before it is too late. Due to the Internet, filing trademark applications can be a fairly simple matter, especially once you have done one or two. This is especially true for trademark applications because the PTO recently created a system called TEAS (Trademark Electronic Application System), which enables preparing and filing applications via the Internet. In fact, to encourage electronic filing, effective June 24, 2003, if you file a trademark application by express mail (the current typical manner), you will no longer get the benefit of the date of deposit in express mail as the filing date. The PTO will only give you the date of actual receipt.