Intellectual Property 101; United States Patent and Trademark Office (USPTO), December 1, 2023

 United States Patent and Trademark Office (USPTO); Intellectual Property 101

"Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), Kathi Vidal, and Regional Outreach Director of the USPTO Eastern Regional Office, Elizabeth Dougherty, joined as special guests for the Tory Burch Foundation’s Small Business webinar series, where they spoke about the significance of protecting intellectual property to help businesses succeed in a competitive marketplace."

Commentary: Warhol decision’s implications for creators, artists; Minnesota Lawyer, June 16, 2023

 Jack Amaral and Jon Farnsworth, Spencer Fane LLP, Minnesota Lawyer; Commentary: Warhol decision’s implications for creators, artists

"Impact on artists and copyright holders

This decision is a victory for copyright holders. Although copyright infringement and analysis of the Fair Use Doctrine is a case-by-case factual analysis where a judge determines whether fair use is a valid defense based on the four factors above, this decision sends a clear message that commercial uses of copyrighted works might be less likely to be considered fair use. This decision could have a significant impact on photographers, artists, and other creators such as software engineers.

Creators who build off copyrighted works should be aware of this decision and know the potential consequences of building off of other’s work. This decision will likely make it more difficult to show a work is “transformative” while leaving an artist open to liability...

Takeaways for creators and businesses:

• If you have current works that are protected under copyright law, keep your eyes peeled for potentially infringing works. Speak with an experienced intellectual property attorney to see if you may have a valid infringement claim.
• If you build off of other creator’s work to create your own, speak to an intellectual property attorney who will walk you through the four factors of the Fair Use Doctrine and help determine if your work could be considered infringement and open you up to potential liability."

Keeping Your Trade Secrets a Secret: Three Common Myths about Trade Secret Protection that could put your Business's Trade Secrets at Risk; Lexology, April 10, 2023

Kane Russell Coleman Logan PC - Richard Hathaway, Lexology; Keeping Your Trade Secrets a Secret: Three Common Myths about Trade Secret Protection that could put your Business's Trade Secrets at Risk

"This blog post will address three common myths many business leaders have about protecting their trade secrets. 

Myth Number One: All Confidential Information is a Trade Secret.

Not all of your business's confidential information qualifies for trade secret protection. It's essential to understand the distinction between confidential information and trade secrets. While all trade secrets contain confidential information, not all confidential information qualifies as a trade secret. If you graphed these concepts as a Venn diagram, your business's trade secrets would be the smaller circle inside the more prominent "confidential information" circle. 

Under most Uniform Trade Secret Acts adopted by individual states and the federal Defense of Trade Secrets Act, to be considered a trade secret, the business information must:

• Have economic value derived from not being generally known or easily discoverable; and
• Be subject to reasonable efforts to maintain its secrecy. 

Common examples of legally recognized trade secrets include proprietary formulas, manufacturing processes, pricing lists, and customer lists. However, general business information, employee data, or other information your business keeps from prying eyes may only meet the criteria for trade secret protection if it has a competitive economic use for your business. Knowing the difference between these essential concepts is critical to understanding where your business should focus its limited resources to protect its trade secrets."

How to Trademark a Name; Money, November 29, 2022

By: Christopher Ricci 

Editor: Gabriel Sánchez Vissepó, Money

; How to Trademark a Name

"Ensure the name you want to trademark isn’t already taken

Before applying for a trademark, ensure that no one else has registered a similar name. Any similarity will invalidate your application efforts because the USPTO can’t allow two companies to have the same or similar names.

This is why a trademark search comes in handy. The USPTO has a database of trademarks, both registered and pending. You can use the Trademark Electronic Search System (TESS) to conduct a USPTO trademark search in the database.

A trademark attorney can help you conduct a more thorough search, as professional searches go beyond the regular USPTO trademark database. The attorney can also check common law trademarks, state trademarks, foreign trademarks and pending applications to minimize the risk of applying for an already registered trademark and avoiding an expensive mistake."

Protecting intellectual property still matters in a pandemic; Washington Examiner, April 21, 2020

Kevin Mooney, Washington Examiner; Protecting intellectual property still matters in a pandemic

"With businesses now under pressure as a result of COVID-19, they can hardly afford to absorb the costs associated with patent allegations that cannot be substantiated under close scrutiny. 

That’s why it’s important to preserve a trial-like procedure organized within the U.S. Patent and Trademark Office that makes it possible to review the legitimacy of patents through a streamlined, cost-effective process that avoids expensive litigation. 

Unfortunately, some lawmakers (such as Democratic Sen. Chris Coons of Delaware) are pushing legislation that would gut and dilute what is known as the inter partes review process, which provides important safeguards against patents that should not have been issued. 

A better solution would be for policymakers to provide those businesses harmed by the coronavirus with greater assurances and predictability. They can do this by defending and strengthening the inter partes review process as a tool to eliminate low-quality, wrongly granted patents that harm the economy, stifle innovation, and cost jobs. 

There’s no disputing the fact that patent examiners are overburdened. Government records show that in 2018, there were 640,000 patent applications filed, but fewer than 8,200 patent examiners available to do a thorough review. On average, patent examiners only have about 19 hours to evaluate a patent application. Under these time constraints, a handful of ill-conceived applications are approved."

COVID-19 and Trade Secrets: Is Your Business Prepared to Protect its Trade Secrets While Your Employees Work From Home?; National Law Review, March 25, 2020

Sheppard Mullin Richter & Hampton LLP., National Law Review; COVID-19 and Trade Secrets: Is Your Business Prepared to Protect its Trade Secrets While Your Employees Work From Home?

"In response to the COVID-19 outbreak, many businesses (particularly those in states or cities under “stay home” orders) have implemented a work-from-home (“WFH”) directive for employees.  It is important for businesses to address the security of their trade secrets in this new environment in order to reduce the risk of misappropriation.  It is also important to reduce the risk that the trade secret status of information will be lost based on a failure to take reasonable steps to protect its secrecy.  This article addresses some steps your business can consider taking to protect trade secrets accessible by employees who are now working at home.  Even if your business had a WFH policy before the COVID-19 outbreak, it should be re-visited in light of the current circumstances flowing from a pandemic during which all or most of your workforce may be operating on a WFH basis.  For example, what was once a “no trade secrets may be taken home” policy may be impossible in the current climate.

The following are a few potential steps for consideration to protect trade secrets in the hands of employees working at home:"

A pub played ‘Conga’ — and now it must face the music with a copyright lawsuit; Miami Herald, February 6, 2020

Theo Karantsalis, Miami Herald; A pub played ‘Conga’ — and now it must face the music with a copyright lawsuit

Read more here: https://www.miamiherald.com/news/local/community/miami-dade/south-miami/article240040773.html#storylink=cpy

"Though the lawsuit does not specify an amount in damages, Pub 52 could be on the hook for up to $150,000 per song, or up to $1,050,000 for seven songs. Penalties for copyright infringement can range from $750 per work infringed up to $150,000 in damages if it is found to be willful infringement, according to the U.S. copyright Law.

A public performance of music includes any music played outside a normal circle of friends and family, according to U.S. copyright law.

Every business or organization must receive permission from the copyright owners of the music they are playing before playing it publicly.

“When we find out that a business is performing music and operating without a music license, we see this as an opportunity to educate business owners on the music licensing process,” Thomas said.

The cost of a BMI music license can cost as little as $378 per year of which 90 cents of every dollar collected from licensing fees goes back to songwriters, composers, and publishers in the form of music royalties, Thomas said."

Read more here: https://www.miamiherald.com/news/local/community/miami-dade/south-miami/article240040773.html#storylink=cpy

Entrepreneurs Tell USPTO Director Iancu: Patent Trolls Aren’t Just “Monster Stories”; Electronic Frontier Foundation (EFF), February 14, 2019

Joe Mullin, Electronic Frontier Foundation (EFF); Entrepreneurs Tell USPTO Director Iancu: Patent Trolls Aren’t Just “Monster Stories”

"Unfortunately, the new director of the U.S. Patent and Trademark Office (USPTO) is in a serious state of denial about patent trolls and the hurt they cause to technologists everywhere. Today a number of small business owners and start-up founders have submitted a letter [PDF] to USPTO Director Andre Iancu telling him that patent trolls remain a real threat to U.S. businesses. Signatories range from mid-sized companies like Foursquare and Life360 to one-person software enterprises like Ken Cooper's. The letter explains the harm, cost, and stress that patent trolls cause businesses."

The unique legal concept that led to Germany’s weird wifi laws; Quartz, July 30, 2018

Edmund Heaphy, Quartz;  The unique legal concept that led to Germany’s weird wifi laws

"Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks.

For more than a decade, Störerhaftung—most commonly translated as “interferer’s liability”—meant that providers of public wifi could be held liable for copyright infringement committed by users of their networks. That had an obvious chilling effect: By some measures, Germany, the EU’s largest economy, has around half the number of cafes with free wifi hotspots per capita than countries like the UK, Austria, and Sweden.

The court ruling means that, at long last, German businesses can be confident that the law will protect them from prosecution for such copyright infringement."

Intellectual Property 101: What Your Business needs to know about Trade Secret Law; Forbes, July 31, 2017

Art Neill, Forbes; Intellectual Property 101: What Your Business needs to know about Trade Secret Law

"Co-author Teri Karobonik contributed to this post*

There are some things you don’t want your competitors to know about your business: customer lists, sales data, secret formulas for your products. As you now know by reading our guides, copyright protection doesn’t extend to lists/data, and although trademark law may prevent others from labeling their competing products in certain ways, it does little to prevent your competitors from misappropriating your formulas to create knock off products.

Enter trade secrets: the fourth major area of intellectual property which protects the public disclosure of your closely-guarded non-public information. Trade secret’s closest cousin in the IP world is patent law. In fact, since getting trade secret protection doesn’t require the expensive and time-consuming formal registration of patent law, some companies/inventors choose to forgo patent registration entirely and protect their products exclusively through trade secret before going to market.  

That said, even though patents and trade secrets can potentially protect similar information, trade secrets are distinct from patents for a huge variety of reasons. The most significant reason, of course, is that patented processes are granted protection  only after the inventor publicly discloses the invention whereas trade secrets are only protected until the information is made public.

Ensuring that your trade secrets are protected may be the only way to secure your competitive advantage in the marketplace. Conversely, ensuring that you don’t mistakenly disclose other’s trade secrets will keep you away from legal liability if you are a consultant, sales person, or just an employee entrusted with sensitive, confidential  information.

In this fourth and final part of this series (see part 1 on Copyright, part 2 about Trademark law, and part 3 on Patents), we’ll break down the last of the 4 major areas of intellectual property protection (trade secrets) and explain:

• what trade secrets protect;
• how trade secret protection is granted;
• whether registration is required, and if you’ll need help from an attorney to protect your trade secrets;
• how long trade secret protection lasts;
• what rights you are granted if you do qualify for trade secret protection."

Intellectual Property 101: What Your Business Needs To Know About Patent Law; Forbes, July 13, 2017

Art Neill, Forbes; Intellectual Property 101: What Your Business Needs To Know About Patent Law

Co-author Teri Karobonik contributed to this post*

"Patents often seem more mysterious than copyrights and trademarks. Everyone has read a book that has copyright notices attached to it, and you encounter trademark protected consumer products every day. You may even have your own brand as a business owner.

But patents, because they involve the type of nonobvious inventions inside the computers we use to read our books and inside the factories where those consumer products are made, may seem harder to conceptualize.

Because patent protection always requires formal registration (in the United States), and because patent applications generally require experienced lawyers to create them (and lots of money to file them), there are good reasons why some inventors and entrepreneurs decide to forgo patent protection altogether. That said, it’s important to understand how patents can affect your startup or your new product.

Existing patents may hinder your ability to create certain products without a license, while filing your own patents could create another revenue stream to capitalize on your new invention.

In this third part of this four part series (see part 1 on Copyright and part 2 about Trademark law), we’ll break down another of the 4 main types of intellectual property (Patent) and explain:

• what patents protect;
• how patent protection is granted;
• whether registration is required,
• when you should apply for a patent, and if you’ll need help from an attorney to it;
• how long patent protection lasts;
• what rights you are granted if you do qualify for patent protection."

Saved by Alice: How a Key Supreme Court Decision Protects Businesses from Bad Patents; Electronic Frontier Foundation (EFF), June 22, 2017

Daniel Nazer and Elliot Harmon, Electronic Frontier Foundation (EFF); Saved by Alice: How a Key Supreme Court Decision Protects Businesses from Bad Patents

"In 2014’s Alice v. CLS Bank, the Supreme Court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. Since then, Alice has provided a lifeline for real businesses threatened or sued with bogus patents.

This week, on the third anniversary of Alice, EFF is launching a new series called Saved by Alice where we’ll collect these stories of times when Alice came to the rescue. Over the next few weeks, we’ll be sharing stories of business owners large and small. You’ll meet an app developer who was sued over a bogus patent on computerized treasure hunts, a software company whose customers were targeted by a patent troll, and a photographer sued for practices that had been common in the field for years. These stories all have one thing in common: someone with a patent on an abstract idea sued a small business, and that business could have lost everything. But Alice came to the rescue.

Why are we telling these stories? Because Alice is under attack. A few loud voices in the patent lobby want to amend the law to bring back these stupid patents. It’s time to tell the stories of the individuals and businesses that have been sued or threatened with patents that shouldn’t have been issued in the first place."

Intellectual Property 101: What Your Business Needs To Know About Trademark Law; Forbes, June 26, 2017

Art Neill, Forbes; Intellectual Property 101: What Your Business Needs To Know About Trademark Law

"Co-author Teri Karobonik contributed to this post*

When you think of a “trademark” you may think of a logo (Apple’s apple logo) or a product or service name (Forbes). You may even assume that trademarks are only a concern for internationally famous brands like fashion companies (Prada) and fast food (Pizza Hut).

In reality, trademark protection extends further than logos and can cover everything from sounds (the 20th Century Fox Fanfare before the opening movie credits), to colors (the “green” on a John Deere tractor), to the design of a taco shop.

Although many of the common examples you hear about are large corporate brands, understanding trademark protection is just as important for startups, independent creators, and small business. So what do trademarks do? They protect consumers from confusion regarding the source of products or services. As your business grows, trademarks become a significant asset because they are the way consumers identify and relate with your company.  You also need to know how and when your business can use the trademarks of other companies.

In this second part of this four part series (see Part 1 on Copyright here), we’ll break down one of the 4 main types of intellectual property (Trademark)  and explain..."

Derogatory trademarks aren’t about free speech. They’re about discrimination.; Washington Post, June 21, 2017

Robert S. Chang, Washington Post; Derogatory trademarks aren’t about free speech. They’re about discrimination.

"Unfortunately, Reyna’s hypothetical is an actuality of sorts. In Florida and other states, gun store owners have placed signs on their establishments declaring themselves to be a “Muslim Free Zone.” As the owner of one of the stores, Florida Gun Supply, said: “My goal is to make sure they don’t feel welcome here so I don’t have the need to discriminate in the first place.

Following Matal v. Tam, nothing will prevent the owner from obtaining federal registration of “Muslim Free Zone” as a trademark, accomplishing through speech what he might not be able to do through direct denial of service. For businesses not covered by Title II of the 1964 Civil Rights Act, nothing will prevent the creation and federal registration of trademarks such as “No Gays Allowed” or, for that matter, “Whites Only.”

The federal government, though, should not be required to register these trademarks. The government should not be required to participate in discrimination.

This is where we are following the Supreme Court decision. This is the mischief that will come."

Why the FDA hides the names of grocery stores that sell contaminated food; Washington Post, March 13, 2017

Caitlin Dewey, Washington Post; Why the FDA hides the names of grocery stores that sell contaminated food

"The SoyNut Butter and a related granola were sold in stores across the country, according to the Food and Drug Administration. It was also served in an untold number of child-care centers and schools.

The FDA does not specify, however, which stores, centers or schools — because that would violate its interpretation of an obscure trade secret rule...

In the case of releasing retailer lists during major outbreaks, the FDA has historically sided with business, ruling that such lists constitute “confidential commercial information” and thus should not be available for public consumption."

Olympic lawyers go for gold in trademark protection; CNBC, 8/18/16

Nicholas Wells, CNBC; Olympic lawyers go for gold in trademark protection:

"The Olympic games may be coming to a close in Brazil, but Olympic lawyers are still working hard in the U.S.

The U.S. Olympic Committee has come under fire this year for sending warning letters to businesses tweeting with "official" Olympic hashtags like "#TeamUSA" and "#Rio2016." But this isn't the first time the USOC has taken steps to protect its trademarked assets. Legal actions involving the USOC have become as routine as the games themselves.

Part of it is due to the special permission afforded the USOC in defending its intellectual property, and some is an abundance of intellectual property to be defended."

Podcast: NPR's Fresh Air; The New Price Point? 'Free'; 7/8/09

Podcast [30 min. 49 sec.] NPR's Fresh Air; The New Price Point? 'Free':

"Journalist Chris Anderson believes that businesses can profit by giving their material away on the Internet. His new book Free: The Future of a Radical Price explains how "free" can become a marketing technique, helping businesses gain credibility in an economy that increasingly values reputation.

The editor-in-chief of Wired magazine, Anderson is the author of The Long Tail. Previously, he was U.S. business editor at The Economist."

http://www.npr.org/templates/story/story.php?storyId=106347439