Based in Denver, CO, Agile Ideation collects the thoughts and experiences of Ed Schaefer. His posts explore agile and devops related topics as he works to maximize team effectiveness and minimize waste through continuous learning, coaching and empowering teams.

Intellectual Property

 

While there are some similarities between copyrights, patents and trademarks each is used for different purposes and to provide different types of protection. Protection granted to creators of published or unpublished literary, dramatic, musical, artistic and certain other "original works of authorship" is known as copyright. Established in 1976 the Copyright Act generally gives the copyright owner exclusive rights of control for the copyrighted work. Included for the creator is the right to do as well as right to authorize others to reproduce the work, prepare derivative works based on the original work, distribute copies of the work either by sale, transfer of ownership, rental, lease or lending, publically perform the work and display the work publically.

While it is illegal for these rights to be violated by anyone, the scope of said rights are not unlimited and there are a number of exemptions. The doctrine of 'fair use' in Section 107 states that reproduction of a work for specific purposes such as criticism, comment, news reporting, teaching, scholarship, and research may be considered fair use. Four factors used to determine if use is fair are laid out in this section. First the purpose and character of the use is evaluated, specifically whether use is for nonprofit educational purposes or some type of commercial nature. The nature of the copyrighted work and what amount of the work was used relative to the whole are factors two and three. Finally what impact the use of the copyrighted work would have on its value or potential market. Even with these factors, distinguishing between infringement and fair use is not easily defined as there are no specific guidelines in place about how much can be used. It is important to note that copyright protects the specific way an author has expressed themselves, not the factual information or ideas relayed by the work.

A set of exclusive rights granted to an inventor is a patent. Patent rights are granted for a limited period of time in return for the inventor publically disclosing the invention. In order to obtain a patent, evidence must be provided demonstrating the invention is new, non-obvious and has some useful purpose. In the United States the term of a new patent is 20 years from the date of patent application filing under most circumstances. Unlike a copyright which grants the author rights, a patent provides the right of excluding others from actions including making, using or selling the invention covered by the patent. Patents are considered property of the patent holder and can be licensed, sold, given away or abandoned. It is the responsibility of the patent holder to challenge an infringer. If there is an infringement on a patent that is not enforced by the patent holder for many years, the patent may be lost. The concept behind a patent is to provide incentives for research and development. By granting exclusive control for a limited time this allows an organization to recoup costs associated with developing the invention. In some industries once a product is created it may be easy to reverse engineer, so if no protections were provided when new inventions were created competitors could easily create their own version of the invention without the high costs of development.

Any distinctive logo, symbol, name, word, image, design or phrase that represents and distinguishes products and services provided for consumers is a trademark. The primary purpose of a trademark is to allow easy identification of the origin of products or services. Trademarks can be unregistered and indicated with the trademark symbol ™ or registered and represented with the registered trademark symbol ®. Eligibility for registration includes having a distinctive character and performing an essential function of a trademark. Distinctiveness is difficult to measure, especially when asked to differentiate between suggestive and descriptive marks versus descriptive and generic marks. A trademark is considered suggestive if it indicates a characteristic or quality of the product related to the trademark. Descriptive marks are words with dictionary definitions used in connection with the related services or products and cannot be registered unless it is distinctive from its definition - Microsoft Windows, for example. When a common name for products or services is used this is a generic mark and cannot serve the essential function of a trademark because it cannot be used to distinguish products and services of one business from the products and services of any other business. Trademarks are recognized as property and thus afforded property rights as a patent is. Also similar to a patent, actual lawful use of the trademark is the only way to maintain the rights of the trademark.

It is important to examine cases of infringement to better clarify copyrights, patents and trademarks. A recent case involving copyright infringement is that of Richard Prince the “rephotographer.” Prince modified 41 photographs from a book Yes, Rasta in various ways before displaying them in a gallery exhibition that generated over $10 million, claiming the work as his own. He was sued by the original photographer Patrick Cariou and US District Judge Deborah A. Batts ruled that the use by Prince was not fair use because Prince testified he is not attempting to communicate a message with his art. An excellent example of potential patent and trademark infringement involves Samsung and Apple. Apple filed a lawsuit on April 15 bringing 16 claims against Samsung including 10 patent claims, trademark infringement and unjust enrichment. Apple’s complaint states “Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple's technology, user interface and innovative style in these infringing products.” Specifically the Apple lawsuit alleges that Samsung violated its patents and trademarks by copying the style, design, user interface and packaging of Apple’s iPhone and iPad lines. Less than a week later Samsung Electronics filed lawsuits against Apple claiming infringement of five patents in a filing in the Seoul Central District Court, Korea, two patent infringements in court in Tokyo Japan and three patent infringements in Manheim, Germany. The suits brought by Samsung claim Apple have violated patents covering technologies for cellphone transmission.

 

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