Intellectual Property Law: Legal Aspects of Innovation and Competition
by Kurt M. Saunders, J.D., LL.M.
Intellectual Property Law covers trade secrets, patents, copyrights, trademarks, the right of publicity, protecting intellectual property internationally, and best practices for the handling of unsolicited ideas. Selected cases illustrate the legal theory with real-world conflicts, and explain the legal precedents established by the courts.
Although written as a business-school textbook, this book would also be a pertinent reference for professionals in a range of industries in the knowledge economy. Awareness of the law can help executives protect their rights and stay out of trouble.
In a global economy, how do you fight counterfeit products? What can you do about gray market sales? The chapter on international aspects explains the relevant treaties, notably the TRIPS Agreement, as well as the role of the WTO and the ITC.
What happens when a small business, which has been using a common law trademark for 50 years, is sued for infringement by a newer company which has registered the trademark with the USPTO? The answer is that concurrent use is allowed until the federal trademark owner competes directly. One of the purposes of trademark law is to prevent confusion in the mind of the consumer as to the origin of the product.
How do you protect the appearance of your product? The author explains the eligibility criteria, advantages, and disadvantages of a design patent (not to be confused with a utility patent or a process patent), trademark (trade dress), and copyright—a company might use all three. The key advantage of a trademark is that it can be renewed forever, so long as it is being used in commerce as an indicator or source. Copyright law protects works of art that have “no functionality beyond expressing the original work… Copyright law does not protect useful articles or the mechanical or utilitarian aspects of craftsmanship.” However, “copyright protection may extend to any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object.” Thus, if the aesthetic aspect could exist independently from the function of the product, it can be protected by copyright.
One of the conditions of patentability is that the invention is novel (new). Surprisingly, that is not the case with copyright law. Supreme Court Justice O’Connor wrote, “Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.”
Another surprising quirk of copyright law is that transfers are not indefinite. “Section 203 of the Copyright Act allows copyright owners, or if the author is dead, by his or her heirs, to terminate transfers at any time during a five-year period, which begins at the end of 35 years from the date the transfer was executed.”
Some additional topics include:
- Digital Millennium Copyright Act (DMCA)
- Anticybersquatting Consumer Protection Act (ACPA)
- Visual Artists Rights Act (VARA)
- Fair Use
A lawyer’s favorite answer to any question is “it depends.” Saunders does a great job of helping the reader understand the complexities of intellectual property law, and why the answer may vary with different circumstances.
Note: Amazon product details currently indicate that this book is 277 pages. It is in fact 941 pages. Additionally there is a code on the inside front cover which gives the registrant electronic access to a workbook.
Disclosure: I received a review copy of this book.
Saunders, Kurt M. Intellectual Property Law: Legal Aspects of Innovation and Competition. St. Paul, MN: West Academic Publishing, 2016. Buy from Amazon.com