Transcript SECTION 101 OF THE PATENT LAW

SECTION 101 OF THE PATENT
LAW
Describes what is patentable subject matter:
"Whoever invents or discovers any new and useful
process, machine, manufacture, or composition
of matter, or any new and useful improvement
thereof, may obtain a patent therefore, subject to
the conditions and requirements of this title."
Brandir Test
If the design elements reflect a merger of aesthetic
and functional considerations
not separate
But if the design elements reflect the designer's artistic
judgment exercised independently of functional
influences
separability
THE CONSTITUTIONAL
LANGUAGE
Article 1 section 8 cl. 8
". . . Congress shall have Power . . . to promote the
progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive
right to their respective writings and discoveries."
Chakrabarty
Patent Examiner Grounds for Denial
1) Product of Nature
2) Living Creature
Patent Act
Section 112
¶1. The specification shall contain a written
description of the invention, and of the
manner and process of making and using it, in
such full, clear, concise, and exact terms as to
enable any person skilled in the art to which it
pertains or with which it is most nearly
connected, to make and use the same, and shall
set for the best mode contemplated by the
inventor of carrying out his invention.
SECTION 112 OF THE PATENT
STATUTE
¶1. The specification shall contain a written description of the
invention, and of the manner and process of making and using
it, in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains or with which it is
most nearly connected, to make and use the same, and shall set
for the best mode contemplated by the inventor of carrying out
his invention.
¶2. The specification shall conclude with one or more claims
particularly pointing out and distinctly claiming the subject
matter which the applicant regards as his invention.
THE ORIGINAL WRITTEN DESCRIPTION:
A sectional sofa segment with a pair of reclining seat sections
built into it with a console that accommodates the controls. The
push button controls may be mounted on the top or sides.
ONE OF THE CLAIMS INVALIDATED BY THE COURT:
A sectional sofa comprising a pair of reclining seats, a fixed
console, and a pair of control means mounted on the double
reclining sofa seat section.
NOVELTY
§102(a)
The invention was known or used by others in
this country, or patented or described in a
printed publication in this or a foreign country,
before the invention thereof by the applicant for
patent . . .
NOVELTY
§102(a)
The invention was known or used by others in this country, or
patented or described in a printed publication in this or a foreign
country, before the invention thereof by the applicant for patent.
§102(b)
The invention was patented or described in a printed publication
in this or a foreign country or in public use or on sale in this
country, more than one year prior to the date of the application
for patent in the United States.
Fact Variation: Hall
The dissertation is published on January 1
Hall makes his discovery on February 1
Hall files for a patent on March 1
Larami
[a] toy comprising an elongated housing having a
chamber therein for a liquid, a pump including a
piston having an exposed rod and extending
rearwardly of said toy facilitating manual
operation for building up a appreciable amount
of pressure in said chamber for ejecting a stream
of liquid therefrom an appreciable distance
substantially forwardly of said toy, and means
for controlling the ejection.
Copyright Statute
Original works of authorship fixed in any tangible
means of expression
Infringement
ownership of a valid copyright
copying of elements that are original
Copyright Act Section 101
You do not get copyright protection for the design of a
useful article:
unless the "design incorporates pictorial, graphic or
sculptural features that can be identified separately
from, and are capable of existing independently of
the utilitarian aspects of the article."
Section 101 Defines
Collective Work as:
"a work such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions,
constituting separate and independent works in
themselves are assembled into a collective whole."
1976 Copyright Act
Defines Work for Hire
1) a work prepared by an employee within the scope of his
or her employment
or
2) a work specially ordered or commissioned for use as a
contribution to a collective work, as a translation, as a part
of a motion picture or other audio-visual work, as a
translation, as a supplementary work, as a compilation, as
an instructional text, as a test, as answer material for a
test, or as an atlas, if the parties expressly agree in a
written instrument signed by them that the work shall be
considered a work made for hire.
Commonlaw Agency Factors
Hiring party's right to control the manner and means of the project
The skill level required
The source of the tools used
The location of the work
The duration of the relationship
Whether the hiring party has the right to assign other projects
The extent of the hiring party's discretion over work hours (when; how long)
The method of payment (by the project v. by the hour)
Whether the hiring party has a role in hiring and paying subs or assistants
Whether the hiring party is in the regular business of
Whatever the project is
Provision of employee benefits; and tax treatment
Copyright Act Section 107
No infringement for fair use for "purposes such
as criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship or research
Fair Use Factors Include
1. purpose and character of the use (including whether
it is commercial or for nonprofit educational purposes
2. nature of the copyrighted work
3. amount and substantiality used
4. effect upon the potential market for or value of
Harper & Row
The author's implied consent to a reasonable and
customary use when he released the work for
public consumption.