Many businesses outsource work such as website creation, software development or other creative tasks, engaging the services of companies or individuals experienced in these fields. Some are surprised to learn, often the hard way, that paying someone to create your website, develop software or produce other works of authorship does not mean you own the copyright in the final work product. Lack of ownership may prove costly, as a copyright owner has the exclusive right to reproduce, distribute and even modify the original work.
Copyright protection, which has been referred to as the “forgotten stepchild” of intellectual property, deserves more respect and attention than it often receives. For starters, copyright protection is rather cheap — in fact, it’s actually free (more on that below). Unlike patents, you don’t need to spend thousands of dollars on an application, hoping that the Copyright Office agrees that you created something artistic or worthy of copyright.
Copyright protects works of authorship, including: literary works; musical works; dramatic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 17 U.S.C. § 102(a). Though copyright does not extend to ideas, processes, systems, discoveries, etc., the tangible expression of these — e.g., computer software — is entitled to copyright protection.…
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The recent Federal Circuit Court of Appeals decision in Leo Pharmaceutical Products, Ltd. v. Rea (Appeal No. 2012-1530, 2013 U.S. App. LEXIS 16610, decided Aug. 12, 2013) provides patent applicants and owners with some valuable ammunition in rebutting “obvious to try” based obviousness assertions against patent claims under 35 U.S.C. §103, both during patent prosecution and patent invalidity proceedings.
In Leo, an appeal from an inter partes reexamination proceeding at the U.S. Patent and Trademark Office, the court reversed the Board of Patent Appeals and Interferences’ holding of obviousness of a pharmaceutical composition on the basis that a person of ordinary skill in the art would not have been motivated to try, let alone make, the claimed invention (*14).
The court found that a claimed storage stable pharmaceutical composition comprising (1) at least one vitamin D analogue, (2) at least one corticosteroid, and (3) at least one solvent selected from a specified group, was “not simply a combination of elements found in the prior art” (*11) (three prior art references relied upon by the Board in finding the compositions obvious), but, rather, the inventors recognized and solved a problem with the storage stability of certain formulations — a problem that the prior art did not recognize and a problem that was not solved for more than a decade:…
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You received a threatening letter from what looks like a “patent troll” demanding a licensing fee and/or royalties but you can find little or no information about the party that sent the letter. The sending party may not even be the owner of record for the identified patent(s) at the USPTO. You may not even be able to determine whether or not the sending party is a patent troll. How do you identify who you are up against? A new online crowdsourcing tool, referred to as Trolling Effects, was launched on July 31, 2013 that provides a database of demand letters and other information that can help you identify patent trolls. The Trolling Effects database is available at www.trollingeffects.org.
Patent trolls often send letters to businesses demanding payment of a licensing fee to avoid expensive patent infringement litigation. In some instances, a draft complaint is attached and the letter states that the complaint will be filed on a certain date if the licensing fee is not timely paid. The licensing fee is typically low enough that many businesses simply pay the fee just to make the patent troll go away. Sometimes these demand letters are sent by the thousands or even tens of thousands so that the patent trolling becomes a profitable business model even if complaints are never or rarely filed.…
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