LEGL 2700 UGA test 3

intellectual property

a type of property in information and its application or expression (patents and copyrights)

4 components of intellectual property

justification, competition, importance, capturing

How to establish the existence of a trade secret

1. conduct a trade secret audit to identify confidential know-ledge based resources

2. preserve secrecy

Al Minor & Associates, inc. V. Martin

- a client list can serve as a trade secret because it provides value to the owner

- the court found that even information that was memorized and not written down can be subject to trade secret protection

- all information used within a company is not necessarily a trade secret

misappropraition

when one improperly acquires secret information through burglary, espionage, or computer hacking (independent creation & reverse engineering are exempt)

patent

the right to exclude others from making, ,using selling, or importing a covered invention

utility patent

new, non-obvious, useful processes, machines, improvements

-20 years from filing date

design patent

new, original & ornamental design for an article of manufacture

-14 years from issue date

plant patent

new variety of plant that can be reproduced asexually

-20 years from filing date

steps to obtaining a patent

1. file application

2. filing fee

3. explain invention

4. show difference from prior art

5. describe patentable aspects

6. evaluation by patent examiner

Association for Molecular Pathology V. Myriad Genetics, Inc.

- the court determined that naturally occurring sequences of DNA isolated from the human body are not patent eligible

-non naturally occurring or manufactured DNA sequences can be patented

- the court's decision retroactively affects existing patent claims covering natural DNA - now they are invalid

novelty

new and different from prior art

non-obviousness

ability of an invention to produce surprising or unexpected results

utility

must be useful

Patent enforcement

-patent owner can sue against infringement for injunction and damage

-invention can cover methods & articles that can overlap

-overlapping rights provide an opportunity for firms to purchase patents rights & sue companies (patent trolls)

patent trolls

a firm or individual that produces no products or services and owns patents only to obtain licensing fees from other firms

University of Wisconsin v. Apple

?????

trademark

marks on what is produced to represent the origin of goods and services

marks protected by the Lanham Act of 1946

trademark, service mark, collective mark, certification mark, trade dress

service mark

mark associated with a service

collective mark

mark representing membership in an organization (NFL)

certification mark

mark used by someone other than the owner to certify the quality

trade dress

the color or shape associated with a product or service (tiffany blue box)

Usage of a trademark in ___________ is required for registration with the PTO.

Interstate commerce

trademark registration

-interstate commerce of a trademark is required

-PTO places the mark in the official gazette

-registered of the principal register if the mark is acceptable

-if listed on the supplemental register for 5 years & acquires a secondary meaning, a name or descriptive term can acquire full trademark status

The PTO will deny registration in the following circumstances:

-if the mark is the same or similar to a current mark

-if the mark contains prohibited names or designs

-if the mark describes a product or service

-if the mark is generic

infringement

civil violation of a trademark or patent

trademark enforcement

-law protects the owner from unauthorized use of the mark

-generic laws cannot be protected

-manufacturing and trafficking counterfeit trademarked products is a criminal violation

Kraft foods v. Cracker Barrel

-cracker barrel could not sell in grocery stores because of the likelihood of confusion with Kraft products

Federal trademark dilution Act 1995

prohibits the usage of a mark same as or similar to another's trademark to dilute its significance, reputation, and goodwill

blurring

blurs distinctiveness of a trademark

tarnishment

when usage of a mark creates a negative impression

copyright

grants property in certain creative expressions and prohibits others from reproducing it

criteria for copyright protection

-must be original

-must be fixed

-must show creative expression

copyright infringement

the owner has to establish that the defendant violated his or her exclusive rights of

-reproduction

-creation of derivative works

-distribution

-performance

-display

copyright fair use

includes copying for

-criticism, comment, news reporting, teaching, scholarship, research

basic forms of business organizations

sole proprietorship, partners, corporation

hybrid forms of business organizations

limited partnership, S corporations, limited liability companies, limited liability partnerships

factors to consider when selecting a business organizational form

1. the cost of creating the organization

2. the continuity or stability of the organization

3. the control of decisions

4. the personal liability of the owners

5. taxation

sole proprietorship

1. least expensive to create

2. continuity is tied directly to the will of the owner

3. sole proprietor is in total control of the business operations

4. owner has unlimited liability

5. not taxed as an organization

partnership

agreement between 2 or more persons to share a common interest in a commercial endeavor

corporation

artificial and intangible entity created under the authority of a state's law

(domestic, foreign, alien)

Alli V. U.S.

- "Piercing the Corporate veil" - when courts find that the corporate organization is being misused, the corporate entity can be disregarded

- Dr. Alli and his wife claimed that the corporate structure shielded them from decisions made in the name of the corporation

- The court concluded that Dr. Alli and his wife did not act as though the corporation was independent from their personal assets

- Court also found that the corporate form had been used to commit a wrong by failing to adhere to obligations to keep BSA's properties in a decent and safe condition for tenants.

limited partners

not responsible for the debts of the business organization (they are shielded)

general partners

personally liable for the organizations debts (managers)

S corporation

-shareholders of certain corporations unanimously elect to have the organization treated like a partnership for income tax purposes

-has all legal features of a corporation

-shareholders have to account on their individual income tax returns for shares of profits or losses

-shareholders avoid having a tax assessed on the corporate income

-can't have more than 100 shareholders

limited liability company (LLC)

-treated as non-taxable entities

-owners have more flexibility compared with S corps

limited liability partnership (LLP)

-have characteristics of both partnerships & corporations

Federal Communications Commission V. AT&T Inc.

- Even though a corporation is treated the same as an individual under most aspects of the law, there are some rights that only individuals can possess

- The Court determined that corporations do not have personal privacy rights, at least in the way intended by congress

administrative agencies

create and enforce laws constituting the legal environment of business

quasi-legislative

an agency can issue rules that have the impact of laws

quasi-judicial

agencies can make decisions like a court

reasons for agencies

provide specificity, expertise, protection, regulation and services

functions of agencies

rule making, adjudicating, advising, investigating

organization of agencies

5-7 members

-appointment requires senate confirmation

-cannot engage in other employment during their terms

Free Enterprise Fund V. Public Company Accounting Oversight Board

-The president not only has the constitutional power to appoint individuals to help execute laws, but must necessarily, then, have the power to remove individuals from their positions

-Individuals appointed to office must have accountability to the president. The PCAOB protected Board members from removal except when a good cause standard was met, but those officers who make the good cause determination were not in control of the president. The court characterizes this as a "novel structure"

-The Court ruled the process of removal created by the Sarbanes-Oxley Act for the PCAOB unconstitutional

-Not the whole Sarbanes-Oxley Act was deemed unconstitutional

-The Court "severed" the unconstitutional PCOAB process and allowed the rest of the law to remain in force

influencing agency decisions

-agencies give public notice of proposed rules and hold public hearings

-interested parties present evidence in support or opposition to the regulation

-agencies react to the force of public opinion

-each branch of gov. has control over the administrative process

judicial review of agency decisions

-standing to sue

-review of rule making

-procedural aspects

-review of factual determinations

standing to sue

is the action reviewable?

is the plaintiff an aggrieved party? (been harmed)

review of rule making

is delegation valid?

authority exceeded?

procedural aspects

exhaustion of remedies

primary jurisdiction

Food and Drug Administration V. Brown & Williamson Tobacco Corporation

-Congress established policies for balancing the economic and health implications of tobacco products with more specific legislative enactments

o Rare case in which the Court cannot give deference to an administrative agency's interpretation of the law it is responsible for administering

-Tobacco has a "unique political history"

o Congress has chosen to control tobacco products separately from other similar products within the FDA's review

criticisms of administrative agencies relating to personnel

-difficulty in hiring and retaining the best-qualified people

-difficult to discharge unsatisfactory employees

-personnel in top positions are selected for political reasons

criticisms of administrative agencies relating to procedures

-delay in the decision-making process

-administrative process is overwhelmed with paperwork and meeting

-rules and regulations are written in complex legal language

-dictatorial in nature

criticisms of administrative agencies relating to substance

-rules and regulations overlap and conflict

-actions for illegal conduct end only with consent orders

-enforcement of laws varies over time

what is a security?

any interest or instrument that offers the right to subscribe to or purchase stock, bond, or any certificate of interest

Securities and exchange commission (SEC)

-responsible for administering the federal security laws

-consist of 5 commissioners

-possess quasi-legislative and quasi-judicial powers

Securities Act of 1933

-Requires full disclosure of information by potential investors

-applies to the initial sale of the security

-information must NOT be untrue or misleading

Securities exchange act of 1934

-regulates transfers of securities after the initial sale

-created the SEC

-illegal to sell unregistered securities on national exchange

-registration requires filling prescribed forms with stock exchange and SEC

(insider & tipper-tippee)

insider

a person who owns more than 10% of any security and is a director or officer of the issuer of the security

tipper-tippee liability

-tipper- person who discloses material non-public info to another person

-tippee- the person who receives material non-public info from a tipper

private securities litigation reform act (PSLRA) of 1995

-SEC can pursue claims against third parties not directly responsible for the securities law violation

-requires private plaintiff to allege with specificity when filing a claim under section 10(b) and rule 10b-5

securities litigation uniform standards act of 1998 (SLUSA)

prevents abusive securities fraud litigation in state courts

state blue sky laws

-state regulations regarding securities laws

-protects potential investors from buying risky securities without financial and other information

uniform securities act of 1956

provides a model for blue sky laws

Sarbanes-Oxley act of 2002

-applies to all public companies in the U.S. and international companies registered with the SEC

practices by ENRON that SOX addressed

-pressuring firms to engage in questionable accounting practices in order to maintain other highly valuable consulting contracts

-letting executives keep bonuses paid out based on profit stated in erroneous, unverified financial statements

practices by ENRON that SOX DID NOT address

the use of mark-to-market accounting to book hypothetical future profits

Dodd-Frank wall street reform and consumer protection act of 2010

-addresses many issues of financial reform

-congress authorized the creation of new administrative agencies to achieve the goals of THIS

Jumpstart our business startups act of 2012 (JOBS)

goals:

-to ease burdensome federal regulations

-allow individuals to invest in start-ups through relaxed rules

Title II:

-allows companies to advertise that they are seeking investments

Title III:

-allows a company to raise up to $1 million by selling securities