The past ten years have seen amazing advances in technology and the next ten promise even more. How has the law kept up to ensure intellectual property rights are adequately protected and what are some major driving forces that will shape IP Law over the next decade.

2010-2020

  1. Globalization. With the rise of e-commerce and the Internet, falling borders and widening markets, businesses are now almost instantly global. No matter where a business is located, it must think beyond its borders and where its customers are and must take steps to protect their intellectual property across national boundaries. While only a select few businesses needed to worry about global IP protection during the 2000s, by 2020 the issue has become far more generally applicable. This has required businesses and their IP counsel to consider global issues at all phases of IP development and to devise appropriate global protection strategies.
  2. The Leahy-Smith America Invents Act (AIA). This 2011 overhaul to the United States Patent Act altered the long-standing US rule that the “first to invent” had superior rights to a “first to file” rule. This significant change brought the US patent system in step with the majority global rule. The AIA implemented other changes in the patent system, but the “first to file” change was most significant and just one of several that updated an antiquated statutory regime.
  3. IP as a Business Asset. For decades, the value of a business was primarily represented by its tangible assets — property, equipment, inventories, etc. This has changed, however, and intangible assets, specifically intellectual property assets, now account for significant portions of business valuation. Indeed, according to the IP-oriented merchant bank Ocean Tomo over 84% of the value of the S&P 500 in 2015 was represented by intangible assets. Further, the USPTO has reported that in 2014, “IP intensive industries” accounted for approximately one third of US GDP. With intellectual property becoming such a major component of the value of a business and such a significant element in our national economy during the past decade, businesses have had to adapt and become much more proactive to protect those assets.
  4. Alice. In Alice Corporation v. CLS Bank International, the Supreme Court ruled that merely applying an abstract idea on a computer is not patent eligible. What this effectively meant was that computer software programs that simply took abstract ideas—like hedging currencies—and implemented those ideas electronically could not be protected by the patent laws. This led to invalidation of a significant number of software patents and made it extremely difficult for software designers to patent their software. Designers had to react by resulting to different means to protect their inventions. While very few software patents have been issued since Alice, courts are beginning to interpret the decision in ways that pave the way for at least some wider availability of patent protection for software.


Continue Reading

Copyright is the exclusive right to reproduce, adapt, distribute, perform, and display works of original expression. These rights accrue upon creation of the work and a copyright registration is not required to own a copyright or acquire these rights.

U.S. Copyright Act

The U.S. Copyright Act, 17 U.S.C. 101, et seq. provides a means for registering copyrights with the U.S. Copyright Office, which is a part of the Library of Congress. The Federal registration process, while simple, can take nine to twelve months to complete before any Registration Certificate issues. The Copyright Act also provides various rights and remedies for copyright infringement, including statutory damages and attorney fee recovery. However, the Act also states

[N]o civil action for infringement of the copyright … shall be instituted until … registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. 411.

What Qualifies as Actual “Copyright Registration”?


Continue Reading

5Pointz

The building once known as 5Pointz was a block-long warehouse structure in Queens, NY. During the ‘90s, the area was rundown and crime-riddled. As a way to discourage vandalism to the building, the owner allowed graffiti artists to paint on the walls, giving them a canvas to display their works. Ultimately, the 5Pointz building became well known among graffiti artists and tourists and artists traveling from all around the world to add their art to the structure. For almost 20 years the developer and the artists existed this way. However, wanting to take advantage of rising real estate prices, in 2010 the owner of the building decided to redevelop it as a residential complex. The owner ultimately obtained permits to demolish the buildings and redevelop the parcel.

The Litigation


Continue Reading

Under the Digital Millennium Copyright Act (“DMCA”) any website that allows site users to post content, including anything such as comments, reviews or videos is considered a “Service Provider.” A Service Provider is potentially exposed to copyright infringement liability based on content posted by site users. However, the DMCA also offers a Safe Harbor that, under certain conditions, can insulate Service Providers from third-party copyright infringement claims based on such user-generated content.

To qualify for protection under this Safe Harbor, the Service Provider must meet certain conditions:

  1. the Service Provider must not know about or participate in the infringing conduct and cannot benefit from that infringement;
  2. the Service Provider must promptly remove any infringing content once it discovers same, either on its own discovery or by notice from a third-party; and,
  3. to qualify for the Safe Harbor, a Service Provider must designate an agent to receive notice of copyright infringement claims and must register the identity of that agent with the U.S. Copyright Office.

New Law


Continue Reading

Flickr Diet BosEvery entrepreneur knows that a key piece of success is a strong and identifiable brand. Because much thought, effort and money goes into branding and so much success rests on it, it is important to ensure you can own, use, and protect that brand. This article addresses some basic intellectual property considerations entrepreneurs and startups should keep in mind from the beginning.

Copyright

Brand creation may involve a number of people including both employees and outside consultants such as ad agencies and designers. Their output, including potential product names, website copy, strategic reports, etc., is likely something they could claim copyright in. While these people can provide valuable creative input and direction, unless proper precautions are taken in the beginning, you might not end up owning what they create.
Continue Reading