Intellectual property Construction Engineering 380 Intellectual Property • The design or development of a product and the manifestation of that product are legally separate.
Download ReportTranscript Intellectual property Construction Engineering 380 Intellectual Property • The design or development of a product and the manifestation of that product are legally separate.
Intellectual property Construction Engineering 380 Intellectual Property • The design or development of a product and the manifestation of that product are legally separate. I can own a CD, but not have rights to the songs on the CD • Similar logic is used in engineering design. The design and the building, product or process that follows from it can be owned by different people Intellectual Property • Intellectual Property is covered under several categories- most common are – Patent – Copyright – Artistic integrity – Trade secret – Trademarks – Shop rights (employee/employer contract) Intellectual Property • Purpose of protecting intellectual property – Foster technological development – Promote social and aesthetic good – Balance rights of artists and inventors with the commercial good created by free exchange of ideas and knowledge Intellectual Property • Copyrights – Most intellectual property no longer covered by state common law (exception is live performances) – Copyright laws are now statutory (not common) for: • • • • • • • Literary works Musical works Dramatic works Pantomime and choreography Pictorial,. Graphic, and sculptural work Motion pictures and audiovisual work Sound recordings Intellectual Property • Plans, models, and drawings are considered pictorial, graphic, and sculptural works • Written specifications are considered literary • Copyrights last for the life of the creator plus 50 years for self-produced work • If produced as an employee (for-hire work), copyright is held by the employer for 75 years after publication or 100 years after creation, whichever comes first Intellectual Property • Fair use doctrine- permits reproduction for purposes of “commentary, critique, reporting, teaching, scholarship or research”- efforts which serve the public good • Commercial use is NOT considered fair use, even if the materials are the same • Amount and substantiality of the portion used (one chapter copy rule; 10% use) • Effect of the use on the market or value of the copied work Intellectual Property • No longer required to register copyrights • However, if an infringement action is started, authors cannot recover if the registration is not completed within three months (example of submittal to poetry journal) • Remedies for infringement- injunction, impoundment, destruction, actual damages and profits earned up to $20,000 Intellectual Property • Design copyrights- stringency depends on the designer, what is being copied, and why. Also, must give credit to originator • Copyrights protect – Sketches, schematics, design drawings, software, renderings, models, construction or manufacturing documents, or (in limited cases) even the completed project or product – Example- window mock-up Intellectual Property • Waiver of registration requirement makes copyrighting drawings and designs easier under the statutory laws • Common law problems arose when a determination was made on “dedication to the public” (going out for bids) • Architectural Works Copyright Protection Act of 1990 cleared up a lot of confusion Intellectual Property • Can only bring claims under statutory law • Architects and designers are covered under artist integrity as well as literary and graphical protection • Allows for destruction of the building as one course of remedy • Must be used by people (not bridges or canals) and be “non-utilitarian” (not doors or hardware) Intellectual Property – Can use pictures of the building – the work can be altered or destroyed without the designers consent – public agencies can amend or alter the work by designation (historical landmark or preservation) or regulation (zoning, codes) – If you are an independent contractors, you hold the rights, but if you are an employee. Your employer holds the rights Intellectual Property • Preemption (federal statutory law gives copyright to the design firm, but contract law gives ownership of design to the client absent specific language to the contrary) • Preemption is complicated and the issues have yet to be resolved by the courts or the professional societies Intellectual Property • How to retain copyright – Follow the statutory requirements – Do not make assignments to others – Include contract language specifying ownership remains with designer – Comply with notice requirements © – Register with copyright office within three months of publication Intellectual Property • Patents- applies to the tangible endproduct (machine, processes, products) • If you wish to PATENT a design, it is a much bigger deal than copyrighting a design • Can be expensive (over 100,000) • Will require assistance of a legal team • Patents must have a higher degree of creativity and uniqueness Intellectual Property • It is relatively easy to get around patents by attacking the validity of the patent or making minor design changes to avoid claims of imitation • Patent infringement suits are long and expensive and are seldom won (only 18% at Supreme Court level) • Patents last 17 years Intellectual Property • Because patents are hard to enforce, many companies use trade secrets instead of patent registration • Trade secret- a process, device, or knowledge that gives your company an advantage over others who do not know how to make or use the process, device or knowledge Intellectual Property • Chemical formulae for industrial processes are probably the best example – Extent to which information is known outside the business – Extent to which it is known by employees and others in the business – Extent of measures taken to protect the information – Value of the information to competitors – Amount of money and/or effort spent developing the information – Ease or difficulty with which the information could be acquired or duplicated Intellectual Property • Usually becomes as issue when an employee leaves and goes to work for themselves or a competitor in the same industry • Usually must sign a non-disclosure agreement and sometimes a non-compete clause at termination • Trade secret litigation comes when a company believes one of its former employees has given trade secrets tot heir new employer Intellectual Property • patent protection requires disclosure, trade secret does not • Trade secret need not achieve the level of creativity and uniqueness required for a patent • Trade secret laws are usually nonstatutory and governed by state systems Intellectual Property • Tradeoff of public good and private vice (Adam Smith)