What is Intellectual Property?

[Ferran]

What is Intellectual Property?

Intellectual Property is the group of legal rights in things people create or invent. Intellectual property rights typically include patent, copyright, trademark and trade secret rights.

Most people are surprised to discover that Intellectual Property rights originate with our Founding Fathers in the Constitution (Article 1, Section 8, Clause 8) which states that Congress shall have the power "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." The right to exclusive ownership and use of one's inventions and the monetary rewards from giving others permission to use them complement the other beliefs of our Founders.

In the middle to late nineteen century, these beliefs grew into capitalism which embodies the benefits and rewards of hard work (as remained from Puritanism); the exchange of business ideas through products and services; and competition in the marketplace and financial reward for the most popular or beneficial ideas. It was not accidental that capitalism had many of the same theoretical bases as Charles Darwin's notions of survival of the fittest from the same time; author and Harvard biology professor Stephen Jay Gould* states that Darwin read Adam Smith prior to writing his "survival of the fittest" theory . Indeed, intellectual property law, with exception of patents which preceded the rest in codification by several centuries, reached major legal codifications in this same period, during the late eighteenth to late nineteenth century. These laws sought to ensure that the best and most popular inventions and creations earned monetary compensation for their creators. This, in turn, inspired others to create through discussion and understanding.

The heart of intellectual property law is the balancing of (a) financially rewarding creation through granting of exclusive rights to the author and (b) promoting the free flow of ideas to facilitate more creation. This balance is two-fold. First, it can been seen as the a tension between rewarding ideas and spurring new ones. Secondly, it can be seen as a balance between the "Promotion of Science and Useful Arts" Constitutional clause above and the First Amendment – this is an equally compelling tension between ownership of arts, words and invention and the freedom of Americans to speak and express themselves without restriction. This balance is visible through all the laws and all the cases about intellectual property in the United States. If you keep this tension in mind, everything else becomes much easier to understand.

With this in mind, let’s consider briefly what rights are granted under patent, copyright, trademark and trade secret law.

*Stephen Jay Gould, The Panda's Thumb: More Reflections in Natural History (New York: Norton, 1982), p.64 according to www.crosscurrents.org/darwin


Patent

Origins

The United Kingdom Patent Office states that the first patent was issued in London in the fifteen century. In the United States, the first patent was granted in 1790.

When Do You Get a Patent?

After inventing a work, the inventor must apply for and obtain a patent from the US Patent and Trademark Office in Washington, DC.

What's Required to Get a Patent?

In order to patent something, you should have a patent attorney, licensed to practice before the Patent Office, assist you with the application. Upon receipt of your application, the Patent Office will examine your application to determine if it meets the legal requirements for obtaining a patent. The requirements are extremely complex, but simplified are that your invention is:

·Novel: this mean it must not be known or used by others in this country, or patented or described in a printed publication here or abroad, or in public use or on sale in this country more than one year prior to the application for patent

·Non-obvious: this means it must not be obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made

·Useful: this means it must have current, significant, beneficial use as process, machine, manufacture, composition of matter or improvements to one of these. According to the Patent Office, the word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products. Certain kinds of software and internet-related processes merit granting of patents.

What Do You Have When You Have a Patent and Is There Any Risk?

If granted, you receive a 20 year monopoly on selling, using, making or importing the invention in or into the United States; what is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

You should be aware of two risks. First is that obtaining a patent can be expensive. You should consult your patent attorney to get a specific estimate, but the application and granting process can take years and require substantial legal work. Secondly, be aware that in exchange for your patent rights, your patent (ie how the invention works), becomes public information so that others may learn from your ideas and create further. Due to the disclosure result, many often opt not to seek patent rights so that they can keep their invention and ideas secret.


The Public Domain

The Public Domain The "Public Domain" refers to created materials which either do not by law get copyright protection or their protection under the law has lapsed. By definition, materials in the public domain do not have copyright protections and thus you do not need the owner’s permission to use these materials. Contrary to the wording, however, whether materials are in public has no relationship to whether they fall into the Public Domain. This mistaken notion has somehow led many to believe that everything on the Internet is in public and therefore in the Public Domain and thus freely usable without permission. This is completely false.


Trademark

Origins

According to the United Kingdom government, the first trademark legislation was in the late nineteen century. In the United States, the first federal trademark legislation was enacted in 1870.

The Purpose of Trademark Law

The trademark act, or "Lanham Act", 18 USC Sec. 1051 etc. , is meant to allow consumers to correctly identify the sources of goods or services.

For example, when we buy a pair of Nike shoes, we want to know that Nike made them and they are of the quality and come with the guarantees that Nike, as a company, offers consumers. Trademark law allows Nike to stop other companies who might make cheap shoes and copy the Nike logo on it from doing so. Allowing a third party to use the Nike mark on its products, would (a) allow it to easily sell products by taking advantage of the money which Nike has spent on advertising, brand development, warranties and customer service, and other techniques to develop goodwill and loyal customers; (b) allow it to offer its products at lower cost than Nike due to lower overhead; and (c) injure Nike because the consumer will associate bad performance of the products with Nike or will try to return products never sold by Nike to Nike and will be angered if Nike refuses to take such products back.

When considering if there is "trademark infringement", the main question a court considers is whether the average consumer would be confused as to the source of the good or service.

What is a Trademark?

A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of particular goods or services. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.

Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A "tm" on a product indicates unregistered trademark rights and an "®" indicates a registered mark. It is illegal to place an "®" on a mark that does not have national registration.

Marks fall into several categories: arbitrary or fanciful, suggestive, or descriptive.

a.Arbitrary and Fanciful Marks: the marks most easily registered are those which are arbitrary or fanciful. These marks are those that have no obvious association with a particular good or service and/or are made up. Yahoo is a perfect example of an fanciful mark. Blue Diamond Almonds is an example of an arbitrary mark.

b.Suggestive Marks: marks which are next most easily registered are suggestive. These marks require the consumer to give some thought to understand the association. Greyhound Buses is an example. A consumer must think about the characteristics of a greyhound, fast, sleek and associate them with the bus service.

c.Descriptive Marks: marks which describe a product or service, describe a product or service through use of a Surname (Smith's plumbing), or describe a product or service through use of a geographical word (Napa Valley Chardonnay), may be difficult to register. When a mark is truly "descriptive", as opposed to "suggestive" is often subjective and depends on the USPTO examining attorney and how well your attorney can argue your application. The idea behind denial of registration is that applicants which are merely describing products should not be able to monopolize use of the words necessary to do so since the general public and their competitors also need to be able to describe products and services without concerns about trademark infringement. The USPTO will grant the mark if a company can prove that consumers identify of a product or service with a source through a descriptive mark.

Trademarks are generally not granted in generic words, phrases, symbols or designs; immoral or scandalous words, phrases, symbols or designs; false, misleading or mis-descriptive words, phrases, symbols or designs; or surnames.

When Do You Get a Trademark and What's Required to Get a Trademark?

You may apply for registration of a trade mark or service mark after you use a mark to identify a product sold or service performed "in commerce" -- or for advertising and/or sale to customers. You may also register your company's intention to use a mark prior to its actual use and then have up to six months to file the actual application with a sample of its actual use.

You are not required to obtain national register of a trade or service mark. Trademark rights arise upon use in commerce. However, national registration expands and protects your trademark rights, giving your company a presumption of first use of the mark in association with particular goods or services.

When you formally apply for national registration of a mark, you must submit an application, drawing of the mark if graphic, and sample of the mark as you have actually used it to identify your company's product or service. Obtaining full registration of a mark usually takes up to several years due to the slow response rate of the USPTO which generally responds to correspondence once every six months. It is best to have an attorney handle the USPTO filing of the application and correspondence with the USPTO since the correspondence usually uses highly legal jargon and cases citing with regard to analyses and argument about the application.

Trademark Searches

Since trade and service mark rights are based on actual use in commerce and priority based on time and geography, not everyone registers marks since it is not required. This means that when you apply for a trademark, you may wish to get a "trademark search". A thorough trademark search includes phone books, newspapers, the internet, state company trade name registrations, the USPTO and other sources and the typical price is about $750. The results of such a search are several hundred pages of analyses of similar words and/or graphic representations of the marks from the US including many that may not be registered but may have prior rights in the marks.

A mark search is not a requirement of registration but if you choose to apply without one, you are taking two risks (1) the USPTO may reject your mark due to pending applications not yet updated in the USPTO database or because of the USPTO's own national search for the mark; and (2) even if your company obtains permission for proceeding with the application from the USPTO, another party may claim prior use of the mark during the application process (called "opposition") or after you receive registration and contest your rights to use the mark due to their prior use. Therefore, it you intend to invest large sums of money in brands recognition, corresponding domain name or company name recognition, a full search rather than a lesser search is the smart choice. Alternatively, if you are not particularly attached to the name of your company, are willing to change it in the future if necessary and want to take the risk by saving money early on, skipping a search may be more in line with your business goals.

What Do You Have When You Have a Trademark?

Having a trademark may allow to you to prevent others from using the same or similar mark with similar products or services by giving you a presumption of first national use of the mark in the US. To explain it another way, a mark allows a company to ensure their customers know which products and services are made by them through use of a word, phrase, symbol or design – their trademark. If another company uses your makr to sell similar products or services, you may bring a trademark infringement claim against such company to stop their use. These cases are usually decided on priority of use, geographical use and consumer confusion with regard to the source of the mark. Trademark rights are indefinite as long as use of the product or performance of the service in commerce continues, your company makes attempts to control use of the mark by others, and the trademark is renewed every ten years.

Domain Names

Having trademark rights is also important with regard to current law and domain names. Presently, the USPTO will not register a domain name that does not merit trade or service mark rights under traditional analysis. The name by itself is considered merely an address. Thus, it is very important to be sure to use your domain name as a trade or service mark in order to ensure retention of the domain name. Under current law, trademark owners may be granted ownership of their trademarks through arbitration or court if a party without trade mark or other rights is using their mark -- in other words, trade mark holders can take domain names which utilize their marks from registrants.



Source: http://www.internet-law-library.com/...y/ip/index.php

[Dr. Solar Wolff]

The US Constitution is cut in stone. It is written "for the people", not for the lawyers. Therefore, as a non-lawyer, it is my understanding of the US Constitution which prevails, not the understanding of a constitutional lawyer.

What is a constitutional lawyer? He is someone who argues that the Constitution is a "living, breathing document" which is just the opposite of a document cut in stone. Again, my understanding as a mere citizen is the correct one. We have a living, breath remedy, Amendments to the Constitution. They live, adapt, and change. They come and go and have come and gone. The core does not.

"Constitutional Law" is a creature of Jewish law. It is an attempt to muddle yet another issue. Citing Adam Smith is a real red herring. There was never a more "cut in stone" guy than Adam Smith. On the other hand, there was never a more limp-writ, wishy-washy guy than the man who was wrong about everything he ever touched, Stephen Jay Gould. Boy, I am glad this guy is dead and in the ground. Natually, he was a Jew and used his postion as a Jewish Intellectual to set back evolutionary theory for a whole generation---in fact he spanned the gap between Frans Boas and the present.

What is Intellectual Property? Well, music is a great example. According the the Yids in the record industry, they own sound. They own the reproductive rights to this sound and they own and can regulate your rights to reproduce this sound for your benifit or your friend's benifit whether or not any money ever changes hands.

In other words, if a Jew wants it, it is Intellectual Property. But, if it is yours, they should have the right to it or at least the right to control it at some future point. Unpatented ideas, claimed as intellectual property are bullshit.

[Dr. Solar Wolff]

Let me try again. Intellectual freedom is you paying for their music and not sharing though Kaaza, for instance, while they are able to go to the library and check out that book you wrote.

[Timo]

What is Intellectual Property?

A capitalistic attempt to control the spread of ideas. In ancient times, there was no need for this, but for the sake of argument, if the Phoenicians copy-writed the Alphabet, the greeks would have continued to use the troublesome Linear B Script, based on syllabary and logograms. Though even Linear B is a blatant rip-off of Linear A Script. Hell, would the early hominids even have been able to develope tools, if the first person to make a tool, copy-writed it, and sued all that tried to copy it.

[Marcus Marulus]

Originally Posted by Timo

What is Intellectual Property?

A capitalistic attempt to control the spread of ideas. In ancient times, there was no need for this, but for the sake of argument, if the Phoenicians copy-writed the Alphabet, the greeks would have continued to use the troublesome Linear B Script, based on syllabary and logograms. Though even Linear B is a blatant rip-off of Linear A Script. Hell, would the early hominids even have been able to develope tools, if the first person to make a tool, copy-writed it, and sued all that tried to copy it.

In that case the whole world except China and Japan would be obliged to pay royalties to the ancient Egyptians, viz. to their descendants, the Copts, for the usage of all sorts of alphabets, which are ultimately (allegedly, it hasn't been proved beyond any doubt) derived from the hieroglyphic script.

[Vincent]

Originally Posted by Timo

What is Intellectual Property?

A capitalistic attempt to control the spread of ideas. In ancient times, there was no need for this, but for the sake of argument, if the Phoenicians copy-writed the Alphabet, the greeks would have continued to use the troublesome Linear B Script, based on syllabary and logograms. Though even Linear B is a blatant rip-off of Linear A Script. Hell, would the early hominids even have been able to develope tools, if the first person to make a tool, copy-writed it, and sued all that tried to copy it.

Sure. But humans are developing, so I see no need why we should live like 3000 (or more) years ago. Capitalism and greed for money are the problem, not 'intellectual property' as such. In these times we live now, where everyone wants his share of the capitalist cake, people are (like it seems) capable for everything, including stealing. What greeks did in ancient times was for the sake of their development as a whole (honest, no backthoughts), while todays use of the ideas of others will most likely bring profit to just one person, or a small group, but is going to bring harm to others.

So I see no evil in protecting the righst on ones Intellectual Property. We could arguee, though, about what should fall into this category, under wich circumstances, and what kind of intellectual property needs to be protected etc. etc.

[Savorgnan]

Originally Posted by Marulus

In that case the whole world except China and Japan would be obliged to pay royalties to the ancient Egyptians, viz. to their descendants, the Copts, for the usage of all sorts of alphabets, which are ultimately (allegedly, it hasn't been proved beyond any doubt) derived from the hieroglyphic script.

Did you ever heard of the Tartaria tablets?

[svin]

Intellectual property laws defend only rich monopolists.

There is an excellent example when a low budget movie with unknown actors became very popular in the internet because of p2p networks. And now it's in the top list of IMDB. The director of the movie is quite happy, I'm sure. Shakespeare, Cervantes, Da Vinci... They did not need these laws. The true art will stay despite any laws.

[Marcus Marulus]

Originally Posted by Savorgnan

Did you ever heard of the Tartaria tablets?

A dead end...

[Savorgnan]

Originally Posted by Marulus

A dead end...

I know, they are not even certified as authentic. Just teasing.

But please explain me how do you connect the Egyptian hieroglyphic alphabet with the Phoenician one?

[Marcus Marulus]

Originally Posted by Savorgnan

I know, they are not even certified as authentic. Just teasing.

But please explain me how do you connect the Egyptian hieroglyphic alphabet with the Phoenician one?

Phoenician alphabet came into being from the Hieroglyphic script, via the Protosinaitic script. There is at least a common agreement among historians about that. And the development can be followed in time. It has not been proven beyond any doubt, but it is highly probably and there is no other more plausible explanation. From Phoenician the Greek alphabet came into being, then from Greek the Latin one (as well as - later on - Armenian, Georgian and Ethiopic scripts). Another branch born from the Phoenician script were Aramaic and Hewbrew syllabaries. The Arabic alphabet comes from one variety of the Aramaic.

The script of the old India, brahmi, is also derived from the Phoenician syllabary, with possibly some Aramaic influences. It is a kind of enigma, as to how Phoenician script came to India (possibly through commerial roots or through the imposition from above, by the Persian or the post-Alexandrine empires). From brahmi are derived all scripts of India (devanagari, Tamil, Telugu, Bengali alphabet etc.), as well as scripts of the South-Eastern Asia (Khmer, Burmeseetc.), which is due to the cultural influence of India upon these regions.

In this sense I said the whole world, except the Chinese, Koreans and the Japanese, should pay royalties for the intellectual property to the Old Egyptians, if the principle of the intellectual property were enforced and carried out consistently. The Old Egyptians not being around any more, maybe Copts should be the beneficiaries. They would become the richest people on earth.

Other scripts, like the cuneiform Sumerian (and then later Akkadian derived therefrom), Mayan pictographs, script of the valley of Indus (Mohenjo Daro and Harappa) and some other scattered remnants (like the tablets of Tartaria mentioned by you, jokingly) finished in a dead end.

[Savorgnan]

Originally Posted by Marulus

Phoenician alphabet came into being from the Hieroglyphic script, via the Protosinaitic script. (...) From Phoenician the Greek alphabet came into being, then from Greek the Latin one (as well as - later on - Armenian, Georgian and Ethiopic scripts).

Thank you for enlighting us, Marulus. But, may I make just a little correction? It's most likely that the Greek alphabêt came to the Romans via the Etruscans.

Originally Posted by Marulus

The script of the old India, brahmi, is also derived from the Phoenician syllabary, with possibly some Aramaic influences. It is a kind of enigma, as to how Phoenician script came to India (possibly through commerial roots or through the imposition from above, by the Persian or the post-Alexandrine empires).

I'm no expert, but I think that commercial route seems likely, and we don't know yet how far the Phoenicians could have travelled.

Originally Posted by Marulus

In this sense I said the whole world, except the Chinese, Koreans and the Japanese, should pay royalties for the intellectual property to the Old Egyptians, if the principle of the intellectual property were enforced and carried out consistently. The Old Egyptians not being around any more, maybe Copts should be the beneficiaries. They would become the richest people on earth.

Do you think they really need that? I mean, they are hated enough in Egypt.

Originally Posted by Marulus

Other scripts, like the cuneiform Sumerian (and then later Akkadian derived therefrom), Mayan pictographs, script of the valley of Indus (Mohenjo Daro and Harappa) and some other scattered remnants (like the tablets of Tartaria mentioned by you, jokingly) finished in a dead end.

Yes, many dead ends indeed, including from the Stone Age (there is a case in Glozel, France).

[Marcus Marulus]

Originally Posted by Savorgnan

Thank you for enlighting us, Marulus. But, may I make just a little correction? It's most likely that the Greek alphabêt came to the Romans via the Etruscans.

Yes, via Etruscans.