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Blaw exam 4
Terms in this set (45)
if a product/service has utilitarian purpose or is a functional, it can not be protected under trade dress law
ABC care repair company has been advertising that it is an authorize Honda repair company when such isn't true. Such a statement may be actionable as ______ and ____.
passing off, false advertising
ABC is leasing cars. There recent ad states "now for $200 per month, you can lease a new Honda. The ad doesn't disclose that there are additional charges of $50 per month.Is ABC liable for false advertisements
Yes, because ad does not disclose that there are significant charges in addition to $200 monthly leasing fee
Hershey has recently released an ad stating that hershey kisses are the best value you can get. Is hershey liable for false advertisement.
No.Its puffing and forming vague ragging
What are 2 forms of dilution?
tarnishment and blurring
Generally ______ is all info available to the public in any form about an invention, and its what determines whether invention in non obvious.
when applying for a design patent, do no need to show usefulness. One must show _____.
Patent applicants are required to conduct searches before applying for a patent
to prosecute a patent application, one must pass the patent bar exam
generally a patent application will be published ______ months after patent application is filed.
Inventors must make substantially equal contributions to an invention to be viewed as joint inventors
if an employee is hired to solve a particular problem, any resulting invention must be assigned to an employer
generally employees who invent some item on their own time and that is not related to the employers business own the resulting invention
a permission given to one to use a patent invention rather than a outright sale of a patent is a _____.
any action for patent infringement must be brought in federal court
when a patent owner unconditionally sells a patented item, the buyer has the right to sell it, or used as desired, give it away, or resell it. This is called _____.
1st sale doctrine
a _______ is one that does not practice or commercialize a patent, but requires a patent solely for the purpose of suing others for infringement of that patent.
a clause by which an employee agrees to assign inventions to an employer not only during the period of employment, but also some period after employment has ended is called ____ clause.
trade secrets last for the life of a creator life plus 70 years
information that qualifies as a trade secret might alternatively be able to be protected under patent/copyright law
Right to publicity
a person name,identity, voice, likeness, and personal are protected against unauthorized commercial exploitation through the right of publicity
postmortem publicity rights
property right that can pass on to ones heir upon death
making false or deceptive representations about ones goods or services is actionable
duration of patent rights
new uses of old inventions
new use demonstrates significant change from the original invention (new and non obvious use of old inventions and compositions are patentable)....new use of a process, machine, manufacture, or composition of matter
Can design patents be functional?
must be ornamental (creative unique design), must serve a useful purpose....primary purpose cant be functional
utility and plant patents similarities
-20 years from filing date
obtaining a utility patent
Invention offered for sale, how soon should a patent application be filed for the invention?
any public use or sale of the invention prior to the application filing date will lead to the granting of a patent, unless disclosed by the inventor or one who obtained the subject matter directly or indirectly from the inventor
can genetically altered product of nature be patented?
genetically living organisms can be patented as "manufactures" or "compositions of matter"
how soon should a regular utility patent application be filed after filing of a provisional patent application?
must file for a standard utility patent within 1 year of filing the provisional application if not deemed abandoned
what will the patent examiner do if there is more than 1 invention in your patent application?
Office action:alternatively, applicant may submit argument, attempting to demonstrate patentability(traverse), especially when the examiner requires the applicant to restrict the patent application to one invention
what part of the patent application describes the invention and the process of making/using it
specification. must be clear,concise, and exact terms as to enable any person skilled in the art
if a patent examiner finds a defect in a patent application, what must be done?
issuance of action plan stating based on the prior art, the subject matter is either not novel,obvious, or not enough info is disclosed in the application to enable another practice that's claimed
what happens when the uspto allows claims and determines the applicant is entitled to a patent?
no bars of Patentability: notice of allowance( issue fee, publication fee 300, paid within 3 months to avoid abandonment of the application) will be issued for the application.
duration of utility, design, plant patent
-utility-20 yrs from filing date
-plant-20 yrs from filing date
-design-14 yrs from grant
who can file a patent application under the America Invents Act?
the person who the inventor assigned the invention
- has an obligation to assign the invention may apply for the patent
may be filed by the assignee of the invention(inventor has obligation to assign)making it easier for the owner(employer) to file the application. must be signed by all inventors if there's more than 1 inventor.
what are shop rights in patent law?
nonexclusive, royalty free, nontransferable license of the employer to make and use the invention in the employer business, whether or not the employee remains employed by the employer (must come from employee during his or her working hours which belongs to the employer)
what are rights of patent co owners
each joint owner may make, sell, use, offer to sell the patented invention without the consent of and without consulting to other owners. each owner has the right to assign or license the patent to a 3rd party without agreement of the other co owners
whats indirect infringement?
encouraging or inducing others to infringe. defendant must know that infringement will occur because of his/her conduct
what can happen when the patent owner sends a cease and desist letter to an alleged infringer?
risk to patent holder in sending a cease and desist letter. recipient may immediately file a declaratory judgment action in the district court in the location he or she is located
can a court rewrite a covenant not to compete?
non compete clause is struck down by a court,some courts will reform the covenant and enforce it in regard to more reasonable territory/length, making it fit the parties intentions rather than striking the entire covenant
when can courts stop an employee from working for a new company because of potential trade secret disclosures?
courts generally will not enforce a restrictive covenant if the employee has left employment due to the employers breach of the employment agreement.
making intentional and untrue statements about another company that causes monetary harm to the company
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