Intellectual Property

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Intellectual Property
Relevant texts Image of The Law of Intellectual Property, Fourth Edition (Aspen Casebook)
The Law of Intellectual Property, Fourth Edition (Aspen Casebook)



Related course(s)

Trade Secrets[edit | edit source]

General Information[edit | edit source]

  • Restatement of Torts, §757, comment b (1939)
    • ○ A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process for manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.
  • Uniform Trade Secrets Act (1979, as amended in 1985)(adopted by 44 states) Definition of “Trade Secret” (Sec. §1(4)):
    • ○ Information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
    • ○ Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, AND
    • ○ Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
  • USTA – Definition of “Misappropriation” §1(2)
    • ○ (1) Acquisition by a person who knows or has reason to know that the trade secret was acquired by improper means
    • ○ (2) Disclosure or use without express or implied consent by someone who
      • ■ (a) Used improper means to acquire the secret, OR
      • ■ (b) At the time of disclosure or use knew, or had reason to know that the trade secret was
        • (i) Derived from or thru a person who acquired it thru improper means
        • (ii) Acquired under circumstances giving rise to a duty to maintain secrecy
        • (iii) Derived from or through a person who owed a duty to keep it secret, OR
      • ■ (c) Before a material change in his position, knew or had reason to know it was a trade secret, and that knowledge of it had been acquired by accident or mistake.
    • USTA – Definition of “Improper Means” §1(1)
      • ○ theft
      • ○ bribery,
      • ○ misrepresentation
      • ○ breach or induction of a breach of a duty to maintain secrecy
      • ○ Espionage, electronic or otherwise

Elements of Trade Secret Claim:[edit | edit source]

  • Secret valuable information
  • Holder has taken “reasonable precautions” to maintain secrecy
  • Misappropriation – which could be acquisition, disclosure, or use
  • Are trade secrets property?
    • ○ “Theft” of trade secrets is deprivation of property
    • ○ Trade secret law increases investment in developing valuable business information
    • ○ Ruckelhaus v. Monsant Co. (SCT, 1984) – trade secrets are property for purposes of the 5th Amendment requirement of compensation for takings of private property
  • Or, are trade secrets really part of tort law?
    • ○ Protecting against breaches of duty and skullduggery
    • ○ Trying to deter poor behavior in business and promote good faith and fair dealing
    • ○ Du Pont v. Masland (SCT, 1917) – focus on breach of confidence
  • Or maybe, contract law?
    • ○ Employment agreement
    • ○ Confidentiality agreement
  • Metallurgical Industries, Inc. v. Fourtek, Inc. (5th Cir. 1986)
  • Restatement of Tort factors (p. 45):
    • ○ Extent to which information is known outside the business
    • ○ Extent to which the information is known by employees and others
    • ○ Extent of measures taken to guard the secrecy of information
    • ○ Value of information to the business and to its competitors
    • ○ Amount of effort or money expended by the business in developing the information
    • ○ Ease or difficulty with which the information could be properly acquired or duplicated by others
  • Uniform Trade Secrets Act (1979, as amended in 1985)(adopted by 44 states)
    Definition of “Trade Secret”:
    • ○ Information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
    • ○ Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, AND
    • ○ Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
  • Restatement (3d) of Unfair Competition (1995)
    • ○ “A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.”
  • Elements of Trade Secret Claim:
    • ○ Secret valuable information
    • ○ Holder has taken “reasonable precautions” to maintain secrecy
    • ○ Misappropriation – which could be acquisition, disclosure, or use
  • Rockwell Graphic Systems, Inc. v. DEV Industries, Inc. (7th Cir. 1991)
  • When does something become not a trade secret?
    • ○ Accidental disclosure/public accessibility
    • ○ Publication
      • ■ Rohm + Hass
    • ○ Patent
    • ○ Reverse engineering
    • ○ 3rd party disclosure or independent developer
    • ○ Common knowledge
    • ○ Government disclosures
    • ○ Not taking reasonable precautions to safeguard it
  • Data General Corp. v. Digital Computer Controls (Del. Ch. 1971)
  • Metallurgical Industries
    • ○ Disclosed to 2 other companies w/o confidentiality agreements
    • ○ Process and modifications generally known in industry
  • Rockwell
    • ○ Some precautions, but still lots of part drawings floating around
  • Data General
    • ○ Gave every customer complete set of designs for computer

How to destroy a trade secret:[edit | edit source]

  • ○ Publication by the trade secret owner in a written publication, including a patent.
  • ○ Selling a product which embodies the secret IF the secret is apparent from the product. Legitimate buyers are entitled to reverse engineer, but if they cannot, no disclosure.
  • ○ Disclosure by an independent developer. A later developer can do whatever s/he likes, and destroy the earlier developer’s trade secret.
  • ○ Inadvertent disclosure – leaving a cellphone in a bar.
  • ○ Gov’t requirement – e.g. to disclose ingredients.
  • USTA – Definition of “Misappropriation” §1(2)
  • (1) Acquisition by a person who knows or has reason to know that the trade secret was acquired by improper means
  • (2) Disclosure or use without express or implied consent by someone who
    • ○ (a) Used improper means to acquire the secret, OR
    • ○ (b) At the time of disclosure or use knew, or had reason to know that the trade secret was
      • ■ (i) Derived from or thru a person who acquired it thru improper means
      • ■ (ii) Acquired under circumstances giving rise to a duty to maintain secrecy
      • ■ (iii) Derived from or through a person who owed a duty to keep it secret, OR
    • ○ (c) Before a material change in his position, knew or had reason to know it was a trade secret, and that knowledge of it had been acquired by accident or mistake.
  • Smith v. Dravo Corp
    • ○ Smith is the plaintiff and the defendants are Dravo Corp.
      • ■ Dravo was a potential buyer of Safeway Containers (shipping containers). His containers were special, they had a special mechanism.
      • ■ Safeway Containers sends Dravo who said they were interested in buying:
        • Trade secrets such as: Model, patent apps, designs, potential customers
      • ■ Dravo rejects the offer and then the next day says they will get into the same business
    • ○ Is there misappropriation of trade secrets?
      • ■ Dravo says it was public disclosure since the containers were out there
        • Court says looking at the container is not enough for reverse engineering
      • ■ Smith: Was there confidentiality between the two parties?
        • Patent apps easy to design around
        • Potential customers
        • 7th circuit: Was there an implied confidentiality based on the way the parties acted?
          • ○ Court held that the behavior of the parties’ shows there should be some kind of confidentiality.
            • ■ Parties understand for what purpose these trade secrets were handed to them
            • ■ They stepped beyond that purpose
          • ○ What should Smith have done?
            • ■ Get a confidentiality agreement
          • ○ Drave should have done?
            • ■ Disclose that it will either compete or buy the company
          • ○ Where is the law now?
            • ■ With or without contract
              • Restatement (3rd) of Unfair Competition, §41
            • Restatement (3rd) of Unfair Competition, §41
              • ○ Confidential relationship is established when
                • ■ The person made an express promise of confidentiality prior to disclosure of the trade secret
                • ■ The trade secret was disclosed to the person under circumstances in which the relationship between the parties to the disclosure or the other facts surrounding the disclosure justify the conclusions that, at the time of the disclosure,
                  • (1) the person knew or had reason to know that the disclosure was intended to be in confidence, and
                  • (2) the other party to the disclosure was reasonable in inferring that the person consented to an obligation of confidentiality.

The problem of departing employee[edit | edit source]

  • ○ Departing Employees
  • ○ Page 85- Common Law Obligation on inventions. Depends when and why and what you use to invent.
  • ○ Non-competition agreement: Employee won’t work for a competitor for x amount of time.
  • ○ Invention assignments: Employer has rights to any invention made by the employee
  • ○ Non-disclosure agreements: Not going to talk about trade secrets
  • ○ Special problem with customer lists/relationships:
    • ■ Not prohibited from taking customers with you

Common law of invention[edit | edit source]

  • Employees hired to invent
    • ○ inventions owned by employer
  • Employees who invent using employer time and/or resources
    • ○ inventions owned by employee, with shop right to employer
  • Employees who invent on their own time with their own resources
    • ○ inventions owned exclusively by employee
  • Contracts to address departing employee problem
  • Confidentiality agreement
    • ○ Keep employer’s information confidential
  • Invention assignment
    • ○ Assign all inventions to employer
  • Noncompetition agreement
    • ○ Refrain from working for competitor for a period of time
  • Special problem of customer lists/relationships
  • Edwards v. Arthur Andersen LLP
    • ○ Edwards is an accountant for Andersen LLP. Edwards is the plaintiff and Andersen is the defendant. Claim: Is noncompetition violation of Cal. Law?
    • ○ Andersen is going out of business. HSBC wants to hire Edwards who used to work at Andersen. HSBC wanted him to sign a termination of non-compete agreement.
      • ■ HSBC will offer jobs if they sign a termination of non-compete with Andersen. Terms were: 18 months no work, 12 months no solicitation.
      • ■ Andersen agreed to let him go with strings attached.
      • ■ Edwards agrees to go on with HSBC but won’t sign the termination agreement.
      • ■ Edwards then gets fired by Andersen and then HSBC won’t give him a job
    • ○ Almost never going to enforce a non-compete like this.

Comprehensive tech v. Software Artisans[edit | edit source]

  • ○ Virginia made a legal standards governing covenants not to compete
  • ○ Is the restraint reasonable?
    • ■ Not unduly harsh
  • ○ Is the restraint reasonable?
    • ■ In other words:
      • Time (length)
      • Geography
      • Scope (what industry)
    • Pepsico v. Redmond
      • Inevitable disclosure
      • ○ Pepsico sues Quaker Oats for trying to hire Redmond a former manager. Redmond knows about their marketing and distribution strategies.
        • ■ He also was in the CA region which they were testing new strategy.
      • ○ Quaker says they will not sure this information and Quaker is willing to have him sign a contract that he won’t use their former strategies/trade secret
      • ○ Holding:
        • ■ Cumulative/general knowledge v. specific information
        • ■ Teradyne: high probably of using trade secret. Don’t meet the burden. General knowledge v. specific information
        • ■ Pepsi claims: intimate knowledge on specific products and specific types of goals.
      • ○ Preliminary injunction: 6 months until you can hire him.
      • ○ Permanent injunction: He can never speak about the trade secrets
    • --9th circuit can’t uphold a non-compete
      • ○ --but it upheld an injunction against solicitation of employees or customers based on such a non-solicitation agreement

Contracts to address departing employee problem[edit | edit source]

  • ○ Confidentiality agreement
    • ■ Keep employer’s information confidential
  • ○ Invention assignment
    • ■ Assign all inventions to employer
  • ○ Noncompetition agreement
    • ■ Refrain from working for competitor for a period of time
  • ○ Nonsolicitation agreement
    • ■ Departing employee will not seek to take others along (may prohibit solicitation of customers too)
  • UTSA, Remedies, §2
    • ○ Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
    • ○ If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited.
    • ○ In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by a court order.
  • USTA, Remedies, §3
    • ○ In addition to or in lieu of injunctive relief, a complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.
    • ○ If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).
  • USTA, Remedies, §4
    • ○ If:
      • ■ A claim of misappropriation is made in bad faith,
      • ■ A motion to terminate an injunction is made or resisted in bad faith, or
      • ■ Willful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.

Trade Secrets Remedies[edit | edit source]

  • Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
  • If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited.
  • In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by a court order.
  • Actual loss or unjust enrichment:
    • ○ a)In addition to or in lieu of injunctive relief, a complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.
      • ■ Exemplary Damages
    • ○ b)If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).
  • Winston Research Corp v. 3M
  • Goes in direct competition with its former employee
  • District Court granted injunctive relief.
    • ○ Limited injunction.
      • ■ Information was going to come out so a 2 year injunction to eliminate lead time. Limit injunction elements:
        • Geography
        • Time
        • Scope
      • ■ 9th Circuit is against money damages since nothing was sold, there were no money damages. Shouldn’t get double
    • ○ Injunctive relief is very common in trade secret.
  • Stop using it right away
    • ○ 4 factor test for permanent injunction
      • ■ Irreparable injury to plaintiff
      • ■ Remedies at law (money damages) are inadequate to compensate for injury
      • ■ The balance of hardships suffered by plaintiff and defendant by injunctive relief favors injunction
      • ■ Public interest would not be disserved by permanent injunction

Patents[edit | edit source]

General Information[edit | edit source]

Patents: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” U.S. Constitution, Art. I, Sec. 8, Cl. 8 the “Intellectual Property Clause”Legal requirements of patentability, 35 USC §100 et seq.

  1. Patentable subject matter §101
  2. Novelty §102
  3. Utility §101
  4. Nonobviousness §103
  5. Enablement §112

Elements of patent application[edit | edit source]

  • Specification – summary, description, drawings – all included in the issued patent – cannot be changed once filed (except for mistakes)
    • ○ Written description
    • ○ Enablement
    • ○ Best mode
  • Claims – also included in issued patent – change during prosecution
  • Oath – inventor is “first and true” inventor
  • Filing fees

Elements

  • 1. If an invention fits one of the general categories of patentable subject matter,
    • ○ Novelty is established by applying a set of technical rules to determine if a patent applicant was really the first to make the invention she is claiming.
  • 2. and it has not been preceded in identical form in the public prior art;
    • ○ Utility, the second requirement has devolved over the years into a rather minimal obstacle to obtaining a patent
  • 3. If it is useful; it represents a nontrivial extension of what was known
    • ○ Nontriviality is known to patent lawyers as “non-obviousness”
  • 4. And it is disclosed and described by the applicant in such a way as to enable others to make and use the invention.
    • ○ One of ordinary skill in the art would be able to make and use the invention
  • A patent confers the right to exclude others from making, using, selling, offering for sale or importing the claimed invention for a specific term of years.
  • ○ A patent does not automatically grant an affirmative right to do anything; patented pharmaceuticals for instance, must pass regulatory review at the FDA to be sold legally.
  • ○ A patented invention may itself be covered by a preexisting patent. For instance, a broad “pioneering” patent on a product or process may cover later-developed inventions, themselves patented as improvements.
    • ■ The holder of an improved patent has the right to exclude everyone from her improvement-including the holder of the broad patent-while at the same time being barred from use of the improvement herself unless the holder of the broad patent authorizes use. (“Blocking patents”)
  • Patent law provides a market driven incentive to invest in innovation, by allowing the inventor to appropriate the full economic rewards of her invention
    • ○ Those who reverse engineer it and who develop the same invention independently can still be sued under patent law
  • What makes something patentable
    • ○ Patentable subject matter
    • ○ Novelty
    • ○ Utility
    • ○ Nonobviousness
    • ○ Enablement
  • Making a patent from something found in nature
    • ○ Congress intended statutory subject matter to include “anything under the sun that is made by man”
    • ○ If the patentee makes something such as a new bacterium with markedly different characteristics from anything found in nature and one having the potential for significant utility he can patent it

What does a Patent do?[edit | edit source]

  • “the right to exclude others from [i]making, [ii] using, [iii] offering for sale, or [iv] selling the invention throughout the United States or [v] importing the invention into the United States” 35 U.S.C. §154(a)(1).
  • “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 USC §101.

Living Organisms[edit | edit source]

Diamond v. Chakrabarty-Chakrabarty invented bacteria that can digest oil -Man made -Human ingenuity-Issue: is a living organism patentable?-Diamond was commissioner of patents and trademarks-No living thing patented-Common Law: If you discover a new plant/mineral then it’s not a patentable invention (pg 134)-Commons: Take away the common heritage of mankind to be able to create stuff.

  • Bacteria/plasma, oil cutting
  • Patentable
    • ○ Made something new
    • ○ No bacteria that can eat oil

Congress-Institutional competence1930 Plant patents-Living organisms are patentable.-Almost all plants have utility patents

  • “This is not to suggest that Sec. 101 has no limits or that it embraces every discovery:
    • ○ The laws of nature,
    • ○ physical phenomena, and
    • ○ Abstract ideas
  • have been held non-patentable.”

Funk Brothers case

  • Bacteria A and B used for agricultural repellant against bugs
  • Produce banana and bacteria A for one type of bugs and bacteria B for another type of bugs but you can’t put them at the same time. Can’t make one commercial product for everything. Funk puts it in the same bag and finds a way to make them live together. Court says they inhabit together and it is new. But the bacterium does the same thing. Not novel. The bacteria are the same. Since they are living you can’t patent.

Parke-Davis v. HK Mulford

  • Parke sells Adrenalin
    • ○ Pure form of adrenaline
  • Mulford sells Adren
    • ○ Kind of the same
  • Mulford says it’s not patentable
  • More effective but can find it in nature. Is it a new composition?
    • ○ Normally a pure form is not a new thing and you can find it in nature. But this degree of purity is a new matter. So pure that it can’t be found in nature.

Myriad Case

  • Isolating DNA
  • Taking different parts of DNA and then combining it to make markers for breast cancer
    • ○ Since it is a human tissue they want to patent.
    • ○ Is it markedly different from regular DNA?
    • ○ Different and not a natural product, since it doesn’t exist in this isolated form.
    • ○ Landmark since it deals with human tissues.
  • In Europe human tissue is not patentable

Mayo CaseClaim 1:A method of optimizing therapeutic efficacy for treatment of [an autoimmune disease], comprising:(a) Administering a drug providing [6-TG to a patient](b) Determining the level of [6-TG in the patient]Wherein [a low] level of [6-TG indicates a need to increase the dose] andwherein [a high] level of [6-TG indicates the need to drop the dose].

  • Patent how to give the drug
  • It was not patentable
    • ○ Screening part: this is a normal thing and everyone does it.
  • (Check if there is a first claim)
    • ○ Analyzing is a mental process. No effect in blood levels it is part of nature

Abstract Ideas[edit | edit source]

BilskiClaim 1(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based on historical averages, said fixed rate corresponding to a risk position of said consumers;(b) identifying market participants for said commodity having a counter-risk position to said consumers; and(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.

  • Abstract ideas. Patentable subject matter
  • Hedging-Buy funds and see what is going on and if it is not safe (going down) sell it or something.
    • ○ when u take a position and get some kind of insurance against losses.
    • ○ for example i buy stock in ibm for $10,000. to protect my money in volatile situation i can hedge(protect) my position by buying puts(like insurance in stock market) for a certain fee in case stock goes down
    • ○ NOT PATENTABLE
    • ○ In business method patent there is no categorical exclusion
    • ○ Too abstract
  • State Street Bank: Business method patent
    • ○ Not categorically excluded
    • ○ A method is defined as a way of doing or conducting business
      • ■ A method can be patented under section 100 or 101
    • Machine-or-Transformation
      • ○ Tied to apparatus
      • ○ Transform into new thing
      • ○ Used in Bilski to decide what is patentable
      • ○ Machine-or-Transformation test is important clue to decide if something patentable but it cannot be used as the sole test in this case
    • Abstract ideas are not patentable. (pg. 165-166) (Benson, Flook, Diehr)
      • ○ Law of nature
      • ○ Physical phenomena
      • ○ Abstract ideas
    • Justice Stevens- Concurring opinion
    • Justice Breyer-Dissenting opinion

Utility[edit | edit source]

Juicy Whip, inc v. Orange Bang, Inc.

  • Patent infringement case
  • Juicy Whip has the patent
  • Orange Bang is the defendant
  • Invention: Liquid in glass case and dispenses it.
    • ○ Orange Bang: has an improvement
    • ○ Patent--> to fake liquid
  • Juicy whip needs to make the case that their patent covers what Orange Bang is using
  • Lack of utility?
    • ○ No utility. It is deceptive
    • ○ Declined to follow precedent. It is the not patent trade to enforce.
      • ■ Don’t care if you deceive the public
    • ○ ACTUAL DECEPTION IS USEFUL

-Moral Utility

  • Used on occasion. Moral utility. I.E. frozen embryos case where the PTO denied. Never used morality argument but can be assumed. Genetically modified mice.

Utility Problem Areas

  • -Frivolous could be a reason something is not utility.
  • -No known use
  • -Social harmful
  • -“Experimental object’”
  • -Potential to be useful later
  • -Some evidence of usefulness
  • -New use
    • ○ -product v. process
    • ○ -new, useful, not obvious
      • ■ -Patent for process but not new product patent

UTILITY:

  • Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. 35 USC §101
  • Must disclose “the manner and process of making and using” the claimed invention. 35 USC §112 ¶1

Three strands of utility doctrine

  • Operability – does it work?
    • ○ PTO in Brenner – is the product useful?
    • ○ App Ct in Brenner – does the process make the product it claims to make?
    • ○ PTO in 2001 guidelines: “credible”
  • Beneficial (moral) Utility: Does it produce some social benefit (or at least no social harm)?
    • ○ Judge Story’s articulation (Lowell v. Lewis 1817)
  • Practical or Specific Utility: Is the utility identified by the inventor a “specific, credible, and substantial” utility? (2001 PTO guidelines)
    • ○ Timing question – scientific hunch v. proof
    • ○ SCT in Brenner

Enablement[edit | edit source]

Enablement §112

  • The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. 35 USC 112, para. 1

The Incandescent Lamp Patent

  • An incandescing conductor for an electric lamp, of carbonized fibrous or textile material and of an arch or horseshoe shape, substantially as hereinbefore set forth
  • Defendant: McKeesport Light Co. Plaintiff: Electric light company
    • ○ Suing for infringement of Sawyer and Man’s patent (076 patent)
  • McKeesport is selling Thomas Edison’s light bulb. His patent is not an issue. It is: are they infringing the light bulb 076 patent?
  • Edison is selling this light bulb to show that the 076 patent is invalid because not every light bulb can be patented. Edison wants to use his lighting patents to dominate the industry
  • Specifications: carbonized paper and wood carbon. Shaping them into a heart shape. How to make it is not important. Phosita would know how to make these. Advantages of using vegetable fibers.
    • ○ Enable the claim? – Court says it is too broad. Can’t have a monopoly. No enablement. Claims are too indefinite (enablement).
      • ■ Can’t claim all vegetable fibers material. Edison did experiment With vegetable material Most don’t work
        • Enablement by a Phosita? Can you make this? Edison was able to but this is still not enablement (Considered undue experiments). Too broad. Not able to claim over the entire fibrous material.
        • Edison wins. Sawyer’s patent becomes narrower.
      • Written description test: Must have a written description of the invention separate from the description for your Phosita. Requirement shows does your claim match the requirement. Always tethered to the description you wrote on the day of patent filing. Holds you to what you proposed that day.
        • ○ Show “possession” of claim invention as of the filing date.
          • ■ Phosita looks at the specification.
        • ○ Possible to enable more than you describe. Can teach more to the Phosita than you claim.
        • ○ Enable a Phosita more broadly than you describe. Limited in your claims to what is described. If you fail in the description requirement then your patent is invalid.
      • The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains , or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. -35 USC 112, para. 1

The Gentry Gallery, Inc. v. The Berkline Corp

  • A sectional sofa comprising:
  • a pair of reclining seats disposed in parallel relationship with one another in a double reclining seat sectional sofa section being without an arm at one end
  • Each of said reclining seats having a backrest and seat cushions and movable between upright and reclined positions . . .
  • A fixed console disposed in the double reclining seat sofa section between the pair of reclining seats and with the console and reclining seats together comprising a unitary structure,
  • Said console including an armrest portion for each of the reclining seats;
  • Said arm rests remaining fixed when the reclining seats move from one to another of their positions,
  • And a pair of control means, one for each reclining seats; mounted on the double reclining seat sofa section . . .
  • Sectional with reclining seats, the way the remotes were put you can’t put them the same way. Section with reclining seats that face the same way with a counsel in-between.
  • Does not say where it is mounted
  • Berkline: Not fixed counsel unlike Gentry.
  • Berkline appeals Claim 1 saying it is invalid for failure to meet the written description.
  • Control means (where to keep the controls) are too broad.
    • ○ Only disclosed having them in the fixed counsels. The purpose of the new couch was to house the counsels
    • ○ Sproule’s testimony, he never thought of putting the counsel anywhere else.
  • Must allow the Phosita to recognize what the invention is that the inventor claims.
  • Misappropriation by amendment – You can’t amend your claim after seeing your competition inventing something better
    • ○ WRITTEN DESCRIPTION PREVENTS THAT
  • Best Mode
    • ○ 35 USC 112, para. 1
      • ■ Out in 2012
      • ■ Written description
      • ■ Enablement
      • ■ Shall set forth the best mode to carrying out invention
    • ○ Put a firm boundary between patents and trade secret. The best mode may be then considered a trade secret.
    • ○ Patent office must examine if you revealed the best mode, then if you kept it you can be denied the patent
      • ■ This is gone in the 2012 act.

Legal testsEnablement: PHOSITA can “make and use” claimed invention based on specification without “undue experimentation”

Written Description[edit | edit source]

Written description: specification must “clearly allow” PHOSITA “to recognize that inventor invented what is claimed” or that inventor had “possession” of the claimed invention at the time of filing the patent application

  • The specification shall contain [1] a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms [2] as to enable any person skilled in the art to which it pertains , or with which it is most nearly connected, to make and use the same, and shall set forth [3] the best mode contemplated by the inventor of carrying out his invention. 35 USC 112, para. 1

Best Mode[edit | edit source]

Elements of Best Mode analysis

  • Subjective
    • ○ Did the inventor reveal what she believes to be the best mode of the invention at the time of filing?
    • ○ Note: Need not have best mode in mind
  • Objective
    • ○ If there was a best mode (subjectively), does the disclosure adequately describe the best mode such that PHOSITA can practice the best mode?

35 USC §112 requirements

  • 1. Enablement
    • ○ Sufficient to allow PHOSITA to make and use
  • 2. Written description
    • ○ Sufficient to show “possession” of the invention claimed
  • 3. Best mode
    • ○ Subjectively the preferred embodiment, and sufficient to allow PHOSITA to practice
  • Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. --35 USC §101

Legal Requirements of Patentability[edit | edit source]

Legal Requirements of Patentability, recategorized

  • Threshold: Patentable Subject Matter
  • The Invention: New, Useful and Nonobvious
  • The Specification: Enablement (including written description and best mode)

Novelty[edit | edit source]

What does “new” mean?

  • True novelty – §102(a)
    • ○ Doesn’t already exist
    • ○ Depends on events by other people
    • ○ Measured by TIME OF INVENTION

Statutory bars – §102(b)

  • Minimal delay between invention and filing – may have been novel when invented, but becomes “old” (non-novel)
  • Depends on events by inventor herself after date of invention (usually)
  • Measured by FILING DATE

35 USC §102(a) (true novelty)

  • A person shall be entitled to a patent unless –
  • (a)
    • ○ [i] The invention was known or used by others in this country, or
    • ○ [ii] patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,

Rosaire v. National Lead Co.

  • Facts: Rosaire had patents that related to methods of prospecting for oil and other hydrocarbons. Known or used by Teplitz
  • Rosaire is plaintiff
  • Defendant is national lead.
  • Patents ‘585, ‘085
  • Openly like employer – ordinary course of business. Known and used by others in the country. Practice this. No patent. Someone already put it out there for the public to use by some affirmative act.
  • Could it be secret knowing or use? Note 1 on 229. Under Rosaire that is enough.

Novelty

  • Threshold: Patentable Subject matter
  • The Invention: New, Useful and nonobvious
    • ○ New: 1. never existed before. (1952 Act). Was it new at the time of invention? 2. Depends on events by other people. 3. Measured by TIME OF INVENTION (True Novelty section 102(a). “Prior Art” and “Anticipation”
    • ○ New: Statutory Bars (section 102(b)). 1. Minimal delay between invention and filing – may have been novel when invented, but becomes old. 2. Depends of events by inventor herself after date of invention. 3. Measured by filing date.
      • ■ If you delay too long you can lose right to patent.
      • ■ Bar arises.

City of Elizabeth v. Pavement Company

  • Invented Wood pavement and laid it on a public street (Mill-dam Avenue in Boston in 1848)
    • ○ It was there for 6 years before the filing date
    • ○ Elizabeth, NJ wants to use it. Says that patent is not valid (6 years?)
    • ○ There was a tollgate and Nicholson did make money from the tollgate. He is getting some profit from this paver. It was 75 feet around the pavement.
      • ■ Why is the tollgate a good place?
        • Heavy loads/ constant use
        • People start and stop
        • There was a tollgate man there to poll the people
      • ■ The testimony was by the tollgate man and he was an employee of Nicholson.
    • ○ Experimental use- public was benefitting from it but still under Nicholson’s control. Patent is valid. Use of the invention by the inventor is trying to perfect the product can be experimental.
      • ■ If durability is important you may need years to see if it is durable.
        • As long as not on sale and not allowing other people to use it.
      • (List of Factors on pg 246-247)

Experimental use factors – Allen Eng Corp. v. Vartell Indus. (Fed. Cir.. 2002)

  1. Necessity for public testing
  2. Amount of control over experiment by inventor – may be decisive
  3. Nature of the invention
  4. Length of the test period
  5. Whether payment was made
  6. Whether there was a secrecy obligation
  7. Whether records of the experiment were kept
  8. Who conducted the experiment
  9. Degree of commercial exploitation during testing
  10. Whether invention reasonable requires evaluation under conditions of actual use
  11. Whether testing was systematically performed
  12. Whether the inventor continually monitored the invention during testing
  13. Nature of contacts made with potential customers

1952 Act: §102(g)A person shall be entitled to a patent unless(1) during the course of an interference, . . . another inventor therein establishes [based on proof of events in a WTO country] that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or(2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it.[3] In determining the priority of invention under this subsection, there shall be considered not only[a] the respective dates of conception and reduction to practice of the invention, but also [b] the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.The Act of Invention – two possible steps:(1) Conception – the idea(2) Reduction to Practice build a working version, or practice the method or file a patent application with a specification meeting Sec. 112Priority rules

  • The first to reduce the invention to practice generally has priority
  • Filing a valid application is a constructive reduction to practice (RTP)
  • The first to conceive may have priority over the first to reduce IF the first to conceive was diligent from a time prior to the other inventor’s conception through the first conceiver’s RTP
  • Any RTP that is “abandoned, suppressed or concealed” is disregarded

Griffith v. Kanamaru, Fed. Cir. 1987

  • Griffith needs to show reasonable diligence. RPT until 1984. Before the competitors conception date (Nov. 17, 1982) All the way until 1984.
  • Why was he inactive. These are the summer months. Funding. And he was waiting for a grad student to finish it.
    • ○ Federal Circuit, did not support this reason for inactivity. There are other grad students.
    • ○ Does not win priority

AIA: “True” novelty is changing, and statutory bars are being redefined.

  • From “first to invent”
  • To “first to file”

Prior User Rights – AIA
35 U.S.C. §273 (as amended)

  • A person shall be entitled to a defense . . . with respect to subject matter consisting of a process, or consisting of a machine, manufacture, or composition of matter used in a manufacturing or other commercial process, that would otherwise infringe a claimed invention . . . if
  • Such person, acting in good faith, commercially used the subject matter in the United States . . . and
  • Such commercial use occurred at least 1 year before the earlier of (A) the effective filing date of the claimed invention OR (B) the date on which the claimed invention was disclosed to the public . . . under 102(b).

First-to-File System: Prior Art

  • § 102(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
    • ○ (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
    • ○ (2) the claimed invention was described in a patent issued [to another] … or in [another’s] application for patent published … [that] was effectively filed before the effective filing date of the claimed invention.
  • Five categories of prior art in 102(a)(1) and a sixth category in 102(a)(2).

First-to-File System: 5 Categories of Prior Art

  • Patents
  • Printed publications
  • Public uses
  • On sale material
  • Otherwise available to the public

Notes:Art is now “prior” if it is before the effective filing date, not the invention dateAll categories are global, including public use and on sale.“Otherwise available” is a new category, perhaps like “known or used”First-to-File System: Exceptions

  • § 102(b) EXCEPTIONS.
    • ○ (1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE EFD OF THE CLAIMED INVENTION. – shall not be prior art under (a)(1) if
      • ■ (A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or joint inventor; or
      • ■ (B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter directly or indirectly from thr inventor or a joint inventor.

First-to-File System: Doctrines

  • The first-to-file system’s basic rule and exceptions flow from two familiar legal doctrines that the statute defines in new ways:
  • The definition of prior art in new §102(a): Now defined to be based mainly on time of filing + now also without any geographic restrictions.
  • The defined exceptions or grace period in new §102(b).

First-to-File System §102(b)(2)

  • First filer wins the patent, except where:
    • ○ (i) the second filer was first to “publicly disclose” the invention and files within 1 year (most important exception);
    • ○ (ii) the first filer obtained the invention, directly or indirectly, from the second filer (to be determined in “derivation proceedings”—the heir to old interferences); or
    • ○ (iii) the first filer abandons the application prior to publication or issuance.

Nonobviousness[edit | edit source]

  • A patent may not be obtained
    • ○ though the invention is not identically disclosed or described as set forth in section 102 of this title,
    • ○ if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
    • ○ Patentability shall not be negatived by the manner in which the invention was made. --35 U.S.C. §103

Non-Obviousness

  • Not in patent act until 1952 Act.
  • Are you first to invent?
    • ○ Anticipated
    • ○ Prior art

Hotchkiss v. Greenwood

  • Improved doorknob.
  • Art was that the knob has a screw down middle and made of porcelain/clay.
  • Skillful mechanic not inventor. Invention is different from just some mechanics skill. Very common sense oriented. Invention v. thoughts of skillful mechanic.
  • Invention Doctrine – Must have inventive genius. (becomes 35 U.S.C. § 103)
  • The novelty of the claimed invention is the substitution of the clay knob in place of one of metal or wood.
  • The fact that the new knob is better or cheaper is irrelevant.
  • Skill and ingenuity must be more than that “possessed by an ordinary mechanic acquainted with the business” – otherwise, a development is “the work of the skilful mechanic, not that of the inventor.”
  • No patent!
  • By 1876, the Court was requiring “inventive genius.” (Reckendorfer v. Faber)
  • In the infamous Cuno Engineering v. Automatic Devices Corp. (SCT, 1941), the Court described the test as requiring a “flash of creative genius.”
  • 1949: Justice Jackson lamented in a dissent that, under the invention standard, the Court had developed such a “strong passion” for striking down patents “that the only patent that is valid is one which this Court has not been able to get its hands on.”
  • Also vague – J. Learned Hand – invention as a “vague phantom” Harries v. Air King Products (2d Cir. 1950)
  • 1952: Congress codifies the obviousness test.

35 U.S.C. §103

  • A patent may not be obtained
    • ○ though the invention is not identically disclosed or described as set forth in section 102 of this title,
    • ○ if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
    • ○ Patentability shall not be negatived by the manner in which the invention was made.

Test for non-obviousness – reaffirming pre-1952 Act case lawGraham v. John Deere

  • 1. Determine scope and content of prior art.
  • 2. Determine the differences between prior art and cope of claimed invention
  • 3. Determine the level of ordinary skill in the art
  • 4. Determine obviousness by examining differences between claimed invention and prior art in light of ordinary skill
  • 5. Subtests (secondary factors/objective indicia) – act as proxies for (4)
  • Obviousness prevents too many patents to be issued. It will be hard to create new ideas because the bar for invention would be too low. Patents also wouldn’t be worth as much.
  • Patent
    • ○ Bargain – Too much for too little

Why have a nonobvious requirement?

  • Why not take an approach similar to that taken in the utility field: “[W]hether [an invention] be more or less [important] is a circumstance very material to the interests of the patentee, but of no importance to the public. If it be [trivial], it will silently sink into contempt and disregard.” Lowell v. Lewis, 15 Fed. Cas. 1018 (C.C D. Mass. 1817) (Judge Story)
  • Courts and commentators agree with near uniformity that the nonobviousness doctrine is designed to screen out patents on “trivial” inventions.
  • The doctrine focuses on technical triviality, NOT economic triviality. An invention can be technically trivial (obvious)but economically significant (but not patentable).

KSR International co. Teleflex Inc.

  • Teleflex is suing KSR for patent infringement. Teleflex has licensee for Engelgau.
  • Invention: Adjustable mechanical pedal and added a sensor on it and the new art is analog-->digital.
  • 1. Scope and content of prior art.
    • ○ What is the critical date? Invented on Feb. 14, 1998 Filed on Jan 26, 1999
    • ○ Asano Patent – Distinguishing features
      • ■ Fixed pivot point
      • ■ Adjustable pedal
    • ○ Redding patents.
      • ■ Non-fixed pivot point
      • ■ Different way.
    • ○ Rixon
      • ■ Sensor on food pedal on foot pad
    • ○ Mechanical Pedal
      • ■ Traditional pedals
    • ○ Adjustable pedal
    • ○ Electronic sensor
      • ■ Computer controlled. Integrated sensors
    • ○ Inventor Not food pad
      • ■ Technology
      • ■ Support an adjustable pedal
      • ■ Electronic pedal
      • ■ Electronic control s responsive to pivot and allows to pivot on access
    • ○ Hindsight bias
      • ■ That there was something that brought you two put these two things together

Claim #4

  • A vehicle control pedal apparatus comprising:
    • ○ [a] a support adapted to be mounted to a vehicle structure
    • ○ [b] an adjustable pedal assembly having a pedal arm moveable . . . with respect to said support
    • ○ [c] a pivot for pivotally supporting said adjustable pedal assembly . . .
    • ○ [d] an electronic control attached to said support for controlling a vehicle system
    • ○ [e] said apparatus characterized by said electronic control being responsive to said pivot for providing a signal that corresponds to pedal arm position as said pedal arm pivots about said pivot axis. . .

KSR principles guiding obviousness analysis

  • Test should be flexible
  • Predictable results are generally unpatentable;
  • Design incentives and other market forces can motivate use or variation of a work in the same field, or another field
  • PHOSITA is creative and generally has the ability to combine insights from other fields;
  • Combination inventions should be scrutinized with special care;
  • Inferences are permissible;
  • Obvious to try might be useful in deciding obviousness;
  • Weak patents can stifle rather than promote progress. – “ordinary innovation” is not patentable
  • Obviousness can be determined as a matter of law

Secondary considerations- Protection against hindsight bias

  • Commercial success
  • Long-felt need and failure by others
  • Awards and praise
  • Skepticism, “teaching away” and unexpected results
  • Licensing activity
  • Copying
  • Advances in collateral technology
  • Near simultaneous invention

Post grant agency proceedings – Patent Trial and Appeal Board

  • Certificate of correction
    • ○ Correction of simple errors
  • Reissue
    • ○ Allows corrections of defects in drawings or specifications
    • ○ changes in claims (2 yr limit on enlarging claim scope)
  • Reexamination
    • ○ Supplemental – by patentee
    • ○ Inter partes – by third party (since 1999) – now inter partes review
    • ○ Allows consideration of new prior art
  • Inter Partes Review (IPR) (AIA)
    • ○ After 9 month PGR window has passed
    • ○ Only patents and printed publications
  • Post grant review (PGR) – by third parties (AIA)
    • ○ For nine month window – on any ground which could be raised in court
    • ○ Quick?
    • ○ AIA also raised bar for later inter partes reexam

Infringement[edit | edit source]

How to prove Patent infringement? What are remedies?

  • 35 USC Section 271 (a) : Infringement
  • You want as broad claim as possible.
    • ○ More weapon to go after your competition
    • ○ But the broader the claim the weaker they are.
      • ■ More likely to be invalidated
        • Lack of enablement
        • Encompass prior ground
        • Discourage monopoly
      • You have a patent so you technically do not need to prove it is there like with a trade secret.
      • How can you show infringement?
        • ○ We are not talking about validity!
          • ■ So elements like obviousness, enablement, novelty, utility is not applicable
        • ○ Infringement analysis is different. Compare patent to real world object.

Claim construction[edit | edit source]

  • Phillips v. AWH
    • ○ The words of the claims
      • ■ Therein vs. thereon
    • ○ The rest of the specification
    • ○ The prosecution history
  • Canons of claim interpretation
    • ○ Start with “ordinary meaning”
    • Put meaning in the context of the specification
      • ■ Board
        • Wood? Plastic? Nystrom v. Trex
          • ○ In one point they say board and in another they say wooden board. Board in the broader claim encompasses more. But if you take that term wooden board would become meaningless.
        • ■ Can define in spec.
          • Photocopy machine on cake case (Guttman v. Kopykake)
            • ○ Wants to include scanner and printer attached to each other
          • ■ Can’t reclaim meaning disclaimed in prosecution or in specification
            • Disavowal doctrine
            • Astrazeneca case
            • Solubilizer
              • ○ Use of this term disavowed two other definitions
              • ○ Tried to broadly interpret. But specific use of this term disavowed other definitions
            • Larami v. Amron
              • ○ A toy comprising
                • ■ Amron: Lights and sound water gun
                • ■ Larami does not have that in the super soaker.
                • ■ 129 patent talks about that it can be used without the lights and sound. COMPRISING:
                  • An elongated housing case
                  • Chamber for liquid tank
                  • A pump including a piston having an exposed piston rod and extended rearwardly
                  • Means for controlling the ejections
                • ○ Comprising is not limited to.
                • ○ Consisting of is closed. That would be only these elements
                • ○ If one element is missing then there is no infringement. Amron must show Larami has all those elements.
                  • ■ Super soaker is external and on top
                  • ■ Missing an element thus no infringement
                    • But what about Substantial Equivalent?
                      • ○ Doctrine of equivalence
                        • ■ Fuzzy zone
                      • Contributory infringement
                        • ○ Indirect infringement
                          • ■ 35 U.S.C. §271(c)
                        • ○ Inducing someone else to do that
                      • C.R. Bard v. Advanced Cardiovascular Systems
                        • ○ Method of angioplasty
                          • ■ ACS= Catheter (tube) that is flexible with 10 openings.
                            • Perfusion catheter
                              • ○ Contributory infringement.
                                • ■ Don’t sue doctors since they don’t have as deep pockets. Also recently, you can’t sue doctors for patent infringement
                              • ○ You can use it for other purposes as well. 102(c) evidence
                                • ■ Insert to other parts not just aorta and the patent is for the aorta only.
                                  • No summary judgment.
                                • Inducement argument 271(b)
                                  • ○ ACS giving instruction to how to infringe.
                                    • ■ Told you the best possible way. In that case they may be liable for active inducement if they are doing that knowingly.

Remedies[edit | edit source]

  • Injunctive relief
    • ○ Preliminary
    • ○ Permanent
    • ○ Sidesteps “valuation problem”
    • ○ Causes “hold-up problem”?
  • Damages
    • ○ Based on “reasonable royalty”-compulsory license
    • ○ Lost profits may be very hard to prove

Copyright[edit | edit source]

General Information Sources of law: 1909 Act 1976 Act (effective for copyrights filed Jan 1, 1978) Berne Convention (1988) 17 USC §102:Copyright protection subsists…in original works of authorship, fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or deviceDefinitions: Fixed Work:“A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.” -- 17 U.S.C. §101Publication:“...the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. The public performance or display of a work does not of itself constitute publication.” Elements of a Copyright Claim:

  1. Ownership of a valid copyright
  2. Violation of one of the copyright holder’s exclusive rights (§106)
If the violation is of the right to copy, is it copying in fact, or improperappropriation?'Copying in Fact: - Is there an admission of copying, or other direct evidence? - Is there circumstantial evdience (e.g., access + similarity)? - Probative Similarity: Possibly a sliding scale; enough similarity toconstitute copying if there was access.- Can use expert testimony to show that the similarity is great enough that it must be copied.- Copying in fact can be subconscious.Nichols v. Universal PicturesIrish & Jewish comedies caseHolding: Not copying because the characters and stories themselves are very different, despite similar trope. No literal copying.Idea v. Expression: You cannot copyright your idea, just your particular expression. Improper Appropriation: - Expression, not idea - Work as a whole, or element by element - “Substantial” -- judged by prior work - Fragmented literal similarity: Is taking a substantial part oforiginal work, or de minimus?- De minimus doctrine may not apply to samplings of songs- Distinction between copyright in sound recording andunderlying song - Virtual identity (for “thin” copyright) - Ordinary observer. v. expert testimonyRequirements' For copyright: 1. Original work of authorship
  1. Fixed in a tangible medium (copy or phonorecording)

“Four formalities” (apply to copyrights under 1909 and 1976 acts):

  1. Notice
  2. Publication
  3. Registration
  4. Deposit
Failure of Formalities: - Until 1989, could cause loss of copyright - Until 1978, failure at federal level does not necessarily destroy rights at state level - Works before 1989 are still subject to the formalities

Copyrightable Subject Matter[edit | edit source]

Things that are not copyrightable:
  1. Facts
Not facts themselves, but compilations of facts can be copyrightable based on factors in Feist Publication
  1. Ideas
Expression of ideas may be copyrightable: if method of operation,procedure or system, then no; if it falls under the merger doctrine,then no.
  1. Patentable things
“...any new and useful process, machine, manufacture, or composition of matter...” 35 USC §101
  1. Design of useful article: Yes, if physically and conceptually separable
Graphic works: Only count for copyright if there are non-useful elementsthat can be identified and could be separated from the useful features.Relevant case: Brandir International, CB p. 484 Fesit Publications v. Rural Telephone Service:Phonebook case - Facts are not copyrightable - Compilations of facts may be copyrightable based on: arrangement; selection;non-factual information included therein- Alphabetical order is not a sufficiently original means of arrangement to qualifyBaker v. Selden, 101 US 99 (1879) Bookkeeping system case Issue: Can you copyright a system of bookkeeping where the fixed medium is a book explaining that system? Holding: No -- the content/ideas/system explained in the book is free for anyone touse.Morrissey v. Proctor & Gamble, 379 F.2d 675 (1967)Let’s all give Tide our social security numbers!Issue: Can you copyright a set of rules for entering a sweepstakes where you mail in aboxtop and your SSN?Holding: No, because you can’t copyright that idea, and that idea is so narrow thatthere are only a certain number of ways to express those rules.Terms: Merger Doctrine -- When there is only one, or but a few, ways of expressingan idea, then courts will find that the idea behind the work merges withits expression and the work is not copyrightable. Things that are copyrightable: Works of Authorship (according to 1976 Act -- non-limiting list): 1) Literary works - Definition: Works expressed in words, numbers, or otherverbal/mathematical symbols or indicia, regardless of the natureof the material object.- No words or short phrases.- Includes non-literal elements such as structure (if expressive) and fictional characters 2) Musical works, including accompanying words 3) Dramatical works, including accompanying music 4) Pantomimes and choreographic works 5) Pictorial, graphic and sculptural works - Definition: 2- or 3D works of fine, graphic and applied art;photographs, prints, and art reproductions; maps, globes andcharts; diagrams, models, and technical drawings, includingarchitectural plans- Limited by useful article doctrine 6) Motion pictures and other audiovisual works 7) Sounds recordings 8) Architectural works (added in 1990) Audiovisual works, 17 USC §101 Definition: Works consisting of a series of related images which are intrinsically intended to be shown by the use of machines or devices...together withaccompanying sounds, if any...regardless of the nature of the material objectMotion picture: Audiovisual work consisting of a series of related images, whichshown in succession impart the impression of motion, together with accompanying sounds, if any.

Domain and Scope[edit | edit source]

Copyrightable: Derivative works, subject to certain restrictions (see rights of owners below), including: - Translation - Art reproduction - Musical arrangement - Abridgment - Dramatization - Condensation - Fictionalization - Any other recastment, adaptation or - Motion picture version transformation - Sounds recording Compilations: Definition: Work formed by assembling pre-existing materials or data that areselected, coordinated and arranged in such a way that the resulting work as awhole constitutes an original work of authorship. A work in which a number ofcontributions, constituting separate and independent works in themselves, areassembled into a collective whole.Must meet minimal threshold of creativity.

Ownership (17 USC. §201)[edit | edit source]

Initial Ownership: Copyright vested in original author(s)Works Made for Hire:

  • 101: Works are made for hire if:
(1) Produced in the scope of employment by an 'employee' (How to tell if it is within scope of employment:
  1. Within the kind of work employee is supposed to perform
  2. Occurs substantially within authorized time/space limits
  3. Actuated, at least in part, to serve the employer)
(2) Work was specially ordered or commissioned from an independent 'contractor for use as a... - Contribution to a collective work - Part of motion picture or other audiovisual work - Translation or supplementary work - Compilation - Instructional text - Test, or answer material for a test - Atlas...IF the parties expressly agreed in a written instrument that it would beconsidered a work made for hire.If the work was made for hire, the employer is considered to bethe author, unless there was an explicit agreement to the contrary. Includes:- Work prepared by an employee within the scope of employment- Commissions of a very specific set (virtually all written or audiovisual)- If the parties expressly agree in a written, signed instrumentFactors to determine whether hiring party controlled manner and means of work: - Skill required - Source of tools used - Location of work - Duration of relationship between parties - Right to assign additional projects - Method of payment - Extent of hirer’s discretion over time/duration of work - Hirer’s role in hiring and paying assistants - Whether work is regular business of hiring party - Whether hirer is in business - Provision of employee benefits - Tax treatment of hired party Community for Creative Non-Violence et. al. v. Reid: Sculpture and conflict over whether it was work for hire' Holding: Because maker was independent contractor, Center had to prove that they had satisfied terms of 101(2), and couldn’t, so not a work for hire. But,could be co-author.Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000)Muslim consultant wants some rights to Malcolm-X movieHolding: Because Aalmuhammed was not the “mastermind” of the movie, just making valuable contributions is not enough to constitute co-authorship. Mustbe the (or a) mastermind. His contributions were subject to Spike Lee’s approval.Test Used: (1) Is it a copyrightable work? (2) Was work intended to merge intoan inseparable whole? (3) Are there two or more authors? (Here, yes, yes, no, b/c not the mastermind.)

Duration[edit | edit source]

- 1909 Act: 28 + 28 years (measured from publication with prior formalities) - 1976 Act (effective date, Jan. 1. 1978): Life + 50 years (measured from fixation) - In 1992, renewal of pre-1978 works becomes automatic' - Sonny Bono Act of 1998: Life + 70 years. Added 20 years to all existing copyright.

Rights of Owners[edit | edit source]

Basic rights of copyright holder:

  1. Reproduction
- Definition of “Copies”: Material objects, other than phonorecords, inwhich a work is fixed...and from which the work can be perceived, reproduced, or otherwise communicated...
  1. Derivative works
  2. Distribution
- Limited by first sale doctrine: except as specifically limited by statute as to phonorecords and computer programs, original owner cannotrestrict resale, leasing, or giving away of a copy by a lawful purchaser(state prohibits for-profit leasing of phonorecords and computerprograms)- Importation right: Owner can block commercial importation ofcopyrighted works abroad.
  1. Performance/display
- Performance: Involves movement, triggered by a physical act taken to make a work perceivable to a viewer or listener, or cause a work to be reproduced, even transiently. - Display: Generally holds still, owners of a copy can display the workto viewers present in the location of the copy - “In public”: A place open to the public or at any place where asubstantial number of persons outside of the normal circle of family andsocial acquaintances are gathered.- Exceptions to display right: Architectural works (if publicly viewable, others may make and display in its image) Sound recordings (digital performance right is with owner;analog performance is not within owner’s rights -- anyonecan play music over the radio)
  1. Anticircumvention
  2. Moral Rights
Limitations on rights of copyright holder:
  1. Fair use
  2. Compulsory licensing for musical compositions, cable television
  3. Limited safe harbor for online service providers
  4. Independent creation
Additional Rights: Creative control Control over timing Derivative works and Compilations: - Copyright protection for these only extends to the material contributed by the author; does not extend to preexisting materials. Does not affectcopyright in previous material.Anderson v. StalloneRock IV caseHolding: Anderson does not deserve any copyright in Rocky IV, even thoughhe wrote the story, because he infringed Stallone’s copyright by usingcharacters, story background, etc., that already existed in the Rocky franchise.Determining whether there was copying: - Did the second author copy, or create independently (copying in fact)? - Did the copying constitute an improper appropriation of protectable elements?Exceptions to exclusive right to copy: - Archived copies in public libraries - Ephemeral copies by broadcasters - Cover license -- to musical compositions, subject to compulsory license - Non-commercial copies of musical compositions and sound recordings by consumers - Running and maintaining computer software -- loading into RAM, makingback-up copies, maintenance and repair- Fair use

Fair Use[edit | edit source]

- Codified in 1976 Act (17 USC §107)“The fair use of a copyrighted work, including such use by reproduction incopies or phonorecords …, for purposes such as:

  • Criticism
  • Comment
  • News reporting
  • Teaching (inclu. multiple copies for classroom use)
  • Scholarship
  • Research

are not infringing copyright.”- Determining fair use:

  1. Purpose and character, whether for profit
  2. Nature of work
  3. Amount and substantiality of portion used
  4. Effect of the use upon the potential market

Unpublished is not itself a bar on finding of fair use' ' Harper & Row v. Nation Enterprises President Ford biography case Holding: Quoting major portions from the most interesting parts of the autobiography was not fair use, because it posed a serious danger to marketability and first sale rights in the autobiography.

Remedies[edit | edit source]

- Injunction (§502, and impoundment/seizure §§503, 509) - Damages Actual §504b Statutory §504c ($750-150,000 per work) - Attorneys fees and costs §505 - Criminal penalties §506 Sheldon v. MGM, SCT (1940) - Case about damages… shows we are still trying to figure out how to work through it- Damages are a jury matter- Another case: Have to show but-for loss of licensing profits

Trademark[edit | edit source]

General Information[edit | edit source]

Definition: A mark which distinguishes the goods or services of a particularmanufacturer, merchant or service provider.Sources of Law: X-1870: Common law (fraud) → Federal statute (1870) 1879: Trademark Cases (SCT) strike down federal statute 1881: IP Clause of the Commerce Clause 1946-Now: Lanham Act of 1946, 15 USC §§1051 et seq.
  • 2 stands for registering a mark with the PTO
  • 32 protects against unauthorized confusing use
  • 43(a) unfair competition cause of action, including infringement of

unregistered mark Purpose: NOT to promote science & useful arts (1) Consumer protection MisrepresentationExcessive transaction costs (2) Producer incentive Value of investment (in mark, in advertising, in quality) Goodwill From unfair competition and/or theft of property

Trademarkable Subject Matter[edit | edit source]

' Protectable subject matter includes: - Names, symbols & logos - Company names - Product names - Slogans and phrases - Product design & packaging - In some cases, color, scent, sound ' Threshold (15 USC §1127): - Any word, name, symbol or device, or combination thereof - Used by a person, or - Which a person has a bona fide intention to use in commerce and applies to register (at the PTO) - To identify and distinguish his/her goods...from those manufactured or sold by others, and to indicate the source of those goods In other words: Use + Distinctiveness Kinds of marks: Service Mark: If for services instead of goods Trade Name: Name of company. Not covered by Lanham Act w/o also sellinggoods or services. Registerable in most states, also covered by state &fed common law.Certification Mark: Used to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other stuff was performed bymembers of a union or other organization.Collective Mark: Trademark or service mark used by members of agroup/association to indicate membership in that group.Trade Dress: Characteristics or visual appearance of a product that indicatesits maker.Qualitex Co. v. Jacobson Products Co., Inc.Green-gold dry cleaning pads caseIssue: Can color alone be considered a trademark?Holding: Yes; because Qualitex’s use of the color met the test for trademarkability, it is fine for the color alone to be a trademark.Requirements Described Here: (1) A word, name, symbol or device; (2) Used as a mark; (3) To identify or distinguish the seller’s goods from those made or sold by others (must be “distinctive”); (4) Not functionalNon-trademarkable subject matter:TrafFix Devices v. MDI SCT (2001)Utility patent on sign → not automatic → but presumption “vital significance”No trade dress b/c patentFunctional (utility) → Patent.Add a feature if you want trade dress protection after your patentexpires. E.g., cover your springs with a little box with a specific designon it.

Procedures[edit | edit source]

' ' Federal Registration: Principal: Must meet threshold requirement; provides nationwide constructiveuse and notice; possible incontestable status after 5 years; applicationspublic once made, and subject to oppositionSupplemental: Capable of distinguishing goods and services; providesdomestic registration to support foreign registration; provides no legalrights beyond common law; no opposition possibleOpposition to Registration: Standing is likely to be damaged; burden of proofon opposer to show grounds for refusal (i.e., likelihood of confusionbased on opposing mark; can be any ground); once mark is registered,third party can also petition for cancellation on essentially the samegrounds (limited by incontestable status)Grounds for Refusal of Registration (Lanham Act §2, 15 USC §1052(a)-(e)):a)“Immoral, deceptive, or scandalous matter; or matter which maydisparage or falsely suggest a connection with persons, living or dead,institutions, beliefs, or national symbols, or bring them into contempt, ordisrepute.”b)“Flag or coat of arms or other insignia of the United States, or of anyState or municipality, or of any foreign nation”c)“A name, portrait, or signature identifying a particular living individualexcept by his written consent, or the name, signature, or portrait of adeceased President”d)So close to another mark as to cause confusion or mistakee)(1) “merely descriptive or misdescriptive,” (2) “primarily geographically descriptive,” (3) “primarily geographically deceptively misdescriptive,” (4) primarily a surname, or (5) functional In Re Old Glory Condom Corp. TTAB (1993) Said that “scandalous” should be defined based on current standards;however, some schools of thought say the original meaning shouldprevail.Geographic reach of trademarkFederal registered:- Nationwide protection from date of application- “Limited area” defense: Right to continue using in a liimted geographic area where mark was in continuous use since before the registration was filedAt common law/unregistered:- Protected where goods are sold and advertised- Can reach beyond selling area to area of mark’s reputation- Can reach to area “expected” to reach in normal expansion- Prohibits intentional use of trademark anywhere (stealing goodwill)- If two people using in same area, both unregistered:o Priority (first user)o Protection beyond immediate area if reputation reacheso Always goes back to likelihood of consumer confusion

Distinctiveness[edit | edit source]

Categories of Marks:- Arbitrary/fanciful (Strongest; e.g., Exxon) No relation to products/services to which they are applied Trademarkable without secondary meaning- Suggestive (e.g., Scrubbing Bubbles) Suggests particular characteristics of good or service Trademarkable without proof of secondary meaning- Descriptive (geographic, personal name, or other) Identifies a characteristic or quality of good or service Trademarkable with secondary meaning- Generic (weakest, e.g., Zipper) “Name of a particular genus” The “basic nature of articles or services” NEVER trademarkable Geographic Marks:Not trademarkable if the mark as applied to the type of goods is recognizable, at least to a large portion of the public, as the name of a location where the goods were likely to have originated from.Focus is to avoid confusing the customer into thinking the goods aremade there (e.g., “champagne” could not be trademarked for white winefrom Italy, bc would be misleading as champagne from Champagne,France; but could be trademarked for lace doilies from Italy, bc no onethinks champagne = doilies = Champagne, France.)In Re Nantucket, Inc.Holding: Nantucket is recognizable as a place, but not somewherewhere shirts would come from: therefore, the trademark should be granted.Descriptive Marks:Zatarain’s Inc. v. Oak Grove Smokehouse, 5th Cir. 1983Chick-Fri & Fish-FriIssue: Is Zatarain’s use of “chick-fri” and “fish-fri” to describe theirproducts trademarkable?Test: For Descriptive v. Suggestive -- (1) Consider ordinary dictionarymeaning. (2) Imagination test -- if it requires some imagination tofigure out what the product is from the name, it is suggestive; if itflat-out says it, it is descriptive. (3) Are others likely to need theterm to identify their own goods? (4) Extent of actual use of termby others.Terms: Secondary Meaning -- Primary meaning describes product,secondary identifies source. Created through use. Required on descriptive mark of goods; geographic marks; personal name marks; non-inherently distinctive trade dress & package; product and container shapes.Subject to fair use defense if used fairly and in good faith todescribe the product. Holding: Terms are both descriptive -- through survey, Zatarain’sestablished secondary meaning for fish, but not chick-fri.Therefore, chick-fri is not copyrightable, but fish-fri is.Generic Marks:Murphy Door Bed Co. v. Interior Sleep Systems, Inc.Murphy bed caseHolding: Murphy bed has passed into public lexicon as the word to describe a wall-bed, so even though Murphy Bed tried to exclude others, trademark no longer applies. Genericide. Factors likely to impair (blur) distinctiveness:

  1. Degree of similarity between junior and famous mark
  2. Degree of distinctiveness of famous mark
  3. Extent to which owner of famous mark is engaging in substantially exclusive

use of the mark

  1. Degree of recognition of famous mark
  2. Whether the junior user intended to create an association with the famous mark
  3. Any actual association between junior and famous mark

Two Pesos v. Taco Cabana: Holding: No requirement of secondary meaning for trade dress under §43(a) of theLanham Act where that trade dress is inherently distinctive.Wal-Mart v. Samara Bros.:Rules: Establishes categories for determining whether unregistered trade dress isprotectable: (1) Product packaging; (2) Product design; (3) A “tertium quid,” or“something indefinite, related in some way to two definite things, but distinctfrom both.” (Wtf)Holding: To be protected, unregistered trade dress must have a secondary meaning.Rescuecom Corp. v. Google:Holding: Google displaying a competitor’s ad, without indicating it is an ad, as the firstlink in a search for Rescuecom is likely to deceive or confuse the consumer.AMF v. Sleekcraft Boats:Slickcraft Boats v Sleekcraft BoatsTest: Likelihood of Confusion -- (1) Strength of the mark; (2) Proximity of the goods; (3) Similarity of the mark; (4) Evidence of actual confusion; (5) Marketingchannels used; (6) Type of goods and the degree of care likely to be exercisedby the purchaser; (7) Defendant’s intent in selecting the mark; (8) Likelihood ofexpansion of the product lines.Holding: Where mark and goods were both very similar and likelihood of expansion was high, but defendant had no intent to infringe, steps must be taken to prevent confusion (e.g., logo must accompany advertisements), but not required to change name or disavow relationship to other company in advertisements.

Incontestability[edit | edit source]

Incontestable status provides “conclusive evidence of the registrant’s exclusive right touse the registered mark. Get it by filing an affidavit with the PTO, stating that:- The mark is registered and in continuous use for five consecutive years- That there has been no final adverse decision to claim of ownership or right toregistration- That no proceedings involving such rights are pending Incontestability can be canceled if: - Genericide - Abandonment - Misrepresentative - Obtained by fraud - If it is causing a monopoly, can say it is being used to violate anti-trust law Park ‘N Fly v. Dollar Park and Fly: Holding: Cannot defend against infringement of an incontestable trademark on thebasis that the mark is merely descriptive.

Priority[edit | edit source]

- Common Law: First to use - Lanham Act, §45(a): - Used in commerce OR - Intent-to-use registration (after 1989) [replaced “token use” beforeregistration] - Bona fide intention to use the trademark in commerce - Results in notice of allowance, subject to later registration with filing of statement of use in commerceZazu Designs v. L’Oreal, 7th Cir. 1992L’Oreal stepping all over Zazu’s shit with hair products- 7th Cir says priority goes to L’Oreal- Use is not sufficient- “Token use” + registration (this is before intent-to-use registration)- Intent can be manifested from registration- Zazu intended to put product in the national market, but did not register, so cannot show intent- Must have intent shown by registration AND be using it in commerce- ^ This makes it easier for competitors to tell ^- What’s important is public availability

Infringement[edit | edit source]

“Any person who shall, without the consent of the registrant--(a) use in commerceany reproduction, counterfeit, copy, or colorable imitation of a registered mark inconnection with the sale, offering for sale, distribution, or advertising of any goods orservices on or in connection with which such use is likely to cause confusion, or tocause mistake, or to deceive...shall be liable.” §1114“A mark shall be deemed to be use in commerce...on services when it is used ordisplayed in the sale or advertising of services and the services are rendered incommerce.” §1127Elements of an Infringement Claim:

  1. Use in commerce
  2. Of reproduction, copy, counterfeit, or colorable image of a registered mark
  3. In connection with sale, offering for sale, distribution, or advertising of goods and

services

  1. Such use is likely to cause confusion

Dilution: Trademark Dilution Act of 1995: “Dilution does not rely upon the standard test of infringement, that is, likelihoodof confusion, deception, or mistake. Rather, it applies when the unauthorized use of a famous mark reduces the public’s perception that the mark signifiessomething unique, singular, or particular...‘Confusion leads to immediate injury, while dilution is an infection, which if allowed to spread, will inevitably destroy the advertising value of the mark.’”Same Act, as Amended in 2006:“(1) Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled toan injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.”Elements of a Trademark Dilution Claim:

  1. Plaintiff owns a famous mark that is distinctive
  2. Defendant has begun using a mark in commerce that is diluting the famous mark
  3. A similarity between the defendant’s mark and the famous mark creates an association between the marks
  4. The association is likely to impair the distinctiveness of the famous mark (blur) or harm its reputation (tarnish)

Factors likely to impair (blur) distinctiveness:

  1. Degree of similarity between junior and famous mark
  2. Degree of distinctiveness of famous mark
  3. Extent to which owner of famous mark is engaging in substantially exclusive

use of the mark

  1. Degree of recognition of famous mark
  2. Whether the junior user intended to create an association with the famous mark
  3. Any actual association between junior and famous mark

Defenses to Dilution:- Fair use, including nominative/descriptive- Noncommercial use (there is such a thing as commercial use not in commerce)- All forms of news reporting/news commentaryMattel, Inc. v. MCA Records, 9th Cir. 2002Barbie Girl case- Active case of blurring, as people could think about both the doll and the songHolding: Although it is blurring, it is not commercial use; commercial purposes are “inextricably intertwined” with expressive purposes, so no infringement.Takeaways: Must be completely commercial use if parody to constitute infringement.

Defenses[edit | edit source]

Abandonment[edit | edit source]

Major League Baseball v. Sed Non Olet Denarius: Brooklyn Dodgers mark case

Rules: “A mark shall be deemed abandoned...when its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment.” 15 USC §1127

Burdens: Burden to show abandonment on allegedly infringing party; burdento prove intent to resume on original holder of mark.

Holding: Because the mark has been put into disuse, and then only picked up after 21 years; because there was a very small geographic limitation in the secondary use; and because there was very little likelihood of consumer confusion, Court declined to enjoin the restaurant from using the name.

Exhaustion/First sale[edit | edit source]

General principle: Exclusive rights of IP holder are “exhausted” at first authorized sale.

In trademark, some recognized limits on resellers: - Failure to maintain requisite quality control- Repackaging while retaining original mark – must avoid consumer confusion- Repaired/reconditioned goods sold under original mark – must avoidconsumer confusion

Nominative use/Parody (sometimes called “nominative fair use” or “nontrademarkuse”)

Louis Vuitton Malletier v. Haute Diggity Dog, 4th Cir. 2007

"Chewy Vuitton" is changed to obviously be a product for dogs: successful parody. Not likely to cause confusion or dilute mark.

New Kids on the Block v. News Am. (9th Cir. 1992)

NKB contest on the radio

Rules: Use of mark to describe the TM owner’s product without permission is nominative fair use when:- Product or service in question not readily identifiable without use of the trademark- Only so much of the mark may be used as is reasonably necessary to identify the product or service- User must not suggest sponsorship or endorsement by the TM holder

Holding: Use of “New Kids on the Block” name in the radio contest is OK, because necessary to identify the thing being talked about.

Nominative v. Descriptive Fair Use[edit | edit source]

Descriptive – Zatarain’s. I can still call my product fish fry, because I’m just using it to describe that it prepares fish for frying.

Nominative – Not tied to descriptive marks. An arbitrary mark can still be used in a nominative way; even completely arbitrary, talking about a cultural,expressive meaning like Barbie Girl, Kodak Girl, Disney Princess, etc.

Seeking cancellation of invalid mark (subject to incontestability status)

Remedies[edit | edit source]

  1. Injunction
    • Temporary
    • Permanent: E.g., for competitive goods, like if there were "Codak Camera" competing with Kodak Camera.
  2. Damages
    • $100K - $1mil: 1mil was for corrective advertising
  3. Attorney’s fees
  4. Cancelation
    • Genericide
    • Contestability