Intellectual Property in the US

Current Issues

The United States is the world’s largest and most technically powerful economy in the world with a GDP ranked second under the European Union.  This is a market-oriented economy that is primarily controlled by individuals and businesses, but regulated by the government.  The United States has been involved with intellectual property since its infancy. The Constitution included a clause in order to “promote the progress of science and useful arts by securing for limited times to authors and inventors the rights to their writings and discoveries.”   The United States has one of the most successful patent systems in the world with over six million patents issued since 1790.  To protect this advancement, the United States also has a strong judicial system that has strict enforcement standards.

Firms in the United States have been on the forefront of technical advances and grew tremendously after World War II.  Very protective of its interests, the United States has been a driving force in the pursuit of worldwide intellectual property rights.  The United States has been promoting their foreign policy interests since the Bretton Woods institutions and is a member of the World Trade Organization. 

http://www.iprcommission.org/papers/pdfs/study_papers/sp1a_khan_study.pdf

https://www.cia.gov/library/publications/the-world-factbook/geos/us.html

Industrial Design

Protection Strategies: http://www.namm.org/content/ipr-six-steps

1. Develop an intellectual property protection strategy and file for both domestic and international protection.
2. Conduct proper due diligence of foreign partners and develop detailed intellectual property provisions for licensing and subcontracts.
3. Register your intellectual property defensively in key foreign markets especially in countries where infringement is common.
4. Record your registration certificate and licenses with Customs and Border Protection Agencies and other administrative bodies. 
5. Consider establishing a physical presence in foreign countries where you are conducting business.
6. Maintain records to effectively enforce your intellectual property rights.

Patentability Requirements:

When the USPTO examines a patent application, it must meet the following criteria:

1. Novel – Extent to which invention is new compared to prior technology 
2. Useful – Extent to which invention produces an effect desirable by society 
3. Not of an obvious nature – Extent to which invention differs from the extent of previous knowledge

Definitions: http://www.uspto.gov/patents/resources/classification/handbook/seven.jsp

A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.  Utility patents are those that protect the way an article works while design patents protect the way an article appears.

Since the claim of a Design Patent is directed to "an ornamental design" for "an article of manufacture" [35 USC 171], the Design classification schedule promotes efficient access to industrial designs that have been granted patent rights.  The Design Patents are classified into thirty-three classes of subject matter, ranging from edible products to musical instruments. Each design class is further organized into a sub-class to promote expediency when searching for specific types of designs.

Protection Periods:

Under current US law, the term of patent is 20 years from the earliest claimed filing date (which can be extended via Patent Term Adjustment and Patent Term Extension).

Process for Applying for Nonprovisional Utility Patent Protection:

A complete nonprovisional utility patent application should contain the elements listed below, arranged in the order shown.

1. Utility Patent Application Transmittal Form
2. Appropriate Fees
3. Application Data Sheet
4. Specification (written description with at least one claim)
5. Drawings (when necessary)
6. Executed Oath or Declaration
7. Nucleotide and/or Amino  Acid Sequence Listing (when necessary)
8. Large Tables or Computer Listings (when necessary)

Crimes against Nonvprovisional Utility Patents:

In the U.S., a patent is a right to exclude others from making, using, selling, offering for sale, exporting components to be assembled into an infringing device outside the U.S., importing the product of a patented process practiced outside the U.S., inducing others to infringe, offering a product specially adapted for practice of the patent, and a few other very carefully defined categories

Legal Actions:  http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

According to 35 U.S.C. 281, “a patentee shall have remedy by civil action for infringement of his patent.” Courts with proper jurisdiction may grant “cease and desist” injunctions and damages “adequate to compensate for the infringement” may be awarded.  Impounding materials is also a potential remedy as well as awarding attorney’s fees in exceptional cases.

Agriculture 

Taken From

     Patent protection is available for those inventions that are new or novel. An important limitation on the availability of patent protection is that the inventor must file a patent application with the Patent Office within one year of the first commercial use (known as the "on-sale bar") or publication of the invention. 16 Because a patent is entitled to a presumption of validity, one who seeks to prove the invention was either anticipated by another or is subject to the on-sale bar must demonstrate this by "substantial evidence that is clear and convincing."

     In a field as competitive as biotechnology, it is not unusual for there to be more than one claimant to the same invention. When applications by multiple applicants to the same invention are simultaneously pending, or a pending application interferes with an unexpired patent, it is the duty of the Commissioner of the Patent and Trademark Office to declare an interference. In Singh v. Brake the Federal Circuit overturned a Patent and Trademark Office Board of Patent Appeals and Interferences decision awarding priority of invention in a DNA construct to Anthony J. Brake. The Federal Circuit determined that the decision of the Board was not supported by substantial evidence and remanded so that the Board could reweigh the sufficiency of the evidence and reach factual conclusions. At issue was the requirement that an inventor's testimony be corroborated. The Federal Circuit concluded that the inventor's laboratory notebook, not witnessed until several years after the fact, could provide corroboration of the inventor's testimony regarding conception but not reduction to practice. The case illustrates the importance of keeping good, promptly witnessed, records of all aspects of research in biotechnology in order to support subsequent applications for patent protection.

Military Design 

Current Issues:

IPR Commission

CIA Factbook

"CIA used 'illegal, inaccurate code to target kill drones'"

In the past, the United States faced a large threat of IP theft from other countries, particularly the Soviet Union. However, after the fall of the iron curtain, IP theft, subsequent reverse engineering, and replication has been occurring more frequently between rival firms. A recent incident of IP laws being broken by rival firms has involved the CIA and Whitehouse and could have ramifications that affect the creation of additional IP regulations in the United States.

According to Christopher William’s article in The Register the U.S. Central Intelligence Agency illegally used programming code in some of the predator drones it has produced for combat operations in the Central Asia. The CIA has been implicated through court action against the software firm, Netezza, which purportedly stole navigation and spatial coding from another defense-related software firm, Intelligent Integration Systems (IISi). Netezza wasn’t able to meet stringent deployment deadlines, so they broke IPR laws and steal the necessary code to complete their software for the drone project. Netezza was not able to properly reverse-engineer the code properly, however. They struggled to meet the requirements and the drone striking capabilities have been much less accurate than they were in the past.

Pharmaceutical

United States pharmaceutical companies hold the most of the intellectual property rights to new medicines and do the most R&D of any country in the world.  Therefore, the U.S. government keeps a close watch for counterfeit pharmaceuticals and takes the matter very seriously. Many U.S. pharmaceutical companies have especially struggled with protecting their patents in other countries, especially Brazil.

New pharmaceutical patents in the United States are governed by two bodies: U.S. patent law and the Food and Drug Administration (FDA). Just because a patent has been acquired for a drug does not mean that it can be marketed and sold. 

Patents can be applied for through the United States Patent & Trademark Office 

Arts and Entertainment

Protection Strategies: http://www.copyright.gov/circs/circ01.pdf

First, you want to make sure that your work classifies as a type of work protected by a United States copyright. 

The following works are protected:

1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

There are also some categories that do not qualify for copyright protection.  These include, but are not limited to, certain types of expression that have not been written down or recorded; titles, names, or slogans; works that contain no original authorship.

A copyright is automatically obtained in the United States upon the creation of the work, but it is also advisable to take the following steps to secure your copyright:

1. Publication or distribution of copies of the work
2. Notice of copyright
3. Copyright registration

US Music Industry:

http://www.riaa.com/physicalpiracy.php?content_selector=What-is-Online-Piracy

In the United States music industry, copyright infringement has become very common with the birth of peer-to-peer file sharing on the internet. “Since peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S. have dropped 53 percent, from $14.6 billion to $7.0 billion in 2011.”  The ease of downloading “free” songs from services like these has instilled the idea in some circles of society that there is nothing illegal about it, but if the songs are copyrighted then it is illegal, and the minimum fine levied is $750 for each song downloaded.

The “No Electronic Theft Law” (NET Act) has created stiffer penalties for those that use peer-to-peer services.  Even if the person charged didn’t use the service for monetary gain, they can be charged with fines of $250,000 and five years in prison.  It also allows the copyright holder to sue them for up to $150,000 in damages for each copyrighted work that was infringed upon.