Intellectual Property Blog
Intellectual Property Blog
Kalamazoo - Intellectual Property Law Blog

IP Claims:

Posted December 2, 2018

Copyright disputes are governed by federal law and, by statute, must be brought in federal district court. United States district courts capably serve a multitude of claimants, presiding over a wide range of disputes, including highly complex litigations with significant rights and millions of dollars at stake. In many cases, federal courts offer distinct advantages over other venues. Federal judges tend to be highly skilled and are more likely to have experience in the interpretation and application of federal law, including the Copyright Act.

In recent years, the number of copyright complaints filed in the U.S. district courts has ranged from slightly above 2,000 to something over 3,000, currently representing about one out of every 100 cases initiated in the federal system. But federal court is effectively inaccessible to copyright owners seeking redress for claims of relatively low economic value, especially individual creators who are of limited resources. It has been estimated that the median cost for a party to litigate a copyright infringement lawsuit with less than $1 million at stake through appeal is $350,000. Such costs, of course, are not only completely disproportionate to what most individuals could invest in a lawsuit, but also to what a copyright claimant could ever hope to recover in a relatively modest infringement case.

Small copyright owners, who frequently lack experience with federal courts, often find federal litigation too difficult or expensive to pursue and may be unable to navigate “the often complex procedural rules that govern federal litigation, leading to resentment and frustration.” Stakeholders described federal court litigation as a very daunting task where it is virtually impossible to have pro se representation.  A number expressed the view that most infringements will never be prosecuted because it is economically unfeasible for the creators to commence an action in federal court.  Moreover, because the potential for recovery of damages is limited, small claimants have less ability to retain counsel, as most attorneys are unwilling to take copyright cases that are unlikely to yield a certain level of damages. Accordingly, even meritorious claims can effectively be shut out of court. For these reasons, the number of infringement actions actually filed in federal court likely significantly underrepresents the number of cases that copyright owners would choose to bring if they were able.

United States Copyright Office Copyright Small Claims


Conditions For Obtaining A Patent:

Posted November 1, 2018

In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:

  • the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention or
  • the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

There are certain limited patent law exceptions to patent prohibitions (1) and (2) above. Notably, an exception may apply to a “disclosure made 1 year or less before the effective filing date of the claimed invention,” but only if “the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed… from the inventor or a joint inventor.”

In patent prohibition (1), the term “otherwise available to the public” refers to other types of disclosures of the claimed invention such as, for example, an oral presentation at a scientific meeting, a demonstration at a trade show, a lecture or speech, a statement made on a radio talk show, a YouTube™ video, or a website or other on-line material.

Effective filing date of the claimed invention: This term appears in patent prohibitions (1) and (2). For a U.S. nonprovisional patent application that is the first application containing the claimed subject matter, the term “effective filing date of the claimed invention” means the actual filing date of the U.S. nonprovisional patent application. For a U.S. nonprovisional application that claims the benefit of a corresponding prior-filed U.S. provisional application, “effective filing date of the claimed invention” can be the filing date of the prior-filed provisional application provided the provisional application sufficiently describes the claimed invention. Similarly, for a U.S. nonprovisional application that is a continuation or division of a prior-filed U.S. nonprovisional application, “effective filing date of the claimed invention” can be the filing date of the prior filed nonprovisional application that sufficiently describes the claimed invention. Finally, “effective filing date of the claimed invention” may be the filing date of a prior-filed foreign patent application to which foreign priority is claimed provided the foreign patent application sufficiently describes the claimed invention.

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be non-obvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.


Registration of a Copyright:

Posted October 13, 2018

The terms audiovisual work, compilation, copy, derivative work, device, fixation, literary work, motion picture, phonorecord, pictorial, graphic and sculptural works, process, sound recording, and their variant forms, have the meanings set forth in section 101 of title 17. The term author includes an employer or other person for whom a work is “made for hire” under section 101 of title 17. A copyright claimant is the author of a work is a person or organization that has obtained ownership of all rights under the copyright initially belonging to the author the Register of Copyrights has prescribed the classes of works in which copyright may be claimed.

These classes, and examples of works which they include, are as follows:

  • Nondramatic literary works. This class includes all published and unpublished nondramatic literary works. Examples: Fiction; nonfiction; poetry; textbooks; reference works; directories; catalogs; advertising copy; and compilations of information.
  • Works of the performing arts. This class includes all published and unpublished works prepared for the purpose of being performed directly before an audience or indirectly by means of a device or process. Examples: Musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; and motion pictures and other audiovisual works.
  • Works of the visual arts. This class includes all published and unpublished pictorial, graphic, and sculptural works. Examples: Two dimensional and three dimensional works of the fine, graphic, and applied arts; photographs; prints and art reproductions; maps, globes, and charts; technical drawings, diagrams, and models; and pictorial or graphic labels and advertisements.
  • Sound recordings. This class includes all published and unpublished sound recordings fixed on and after February 15, 1972.

Claims to copyright in literary, dramatic, and musical works embodied in phonorecords may also be registered in this class under paragraph (b)(4) of this section if:

  • Registration is sought on the same application for both a recorded literary, dramatic, or musical work and a sound recording;
  • The recorded literary, dramatic, or musical work and the sound recording are embodied in the same phonorecord; and
  • The same claimant is seeking registration of both the recorded literary, dramatic, or musical work and the sound recording.

Title 37: Patents, Trademarks, and Copyrights; Section 202.3