Intellectual Property Articles Paw Paw - Intellectual Property Law Blog
Paw Paw - Intellectual Property Law Blog

Jurisdictional Issues:

Posted December 4, 2018

Copyright infringement claims are governed by federal law and are required to be brought in federal – not state – court. In considering a case under the Copyright Act, a federal court may also exercise supplemental jurisdiction over a related state court claim, such as a breach of contract action, in appropriate circumstances. In their limitation to the federal courts, copyright cases resemble patent actions, which also must be brought in federal court. But while patent cases initially are filed and heard by federal district courts, unlike copyright cases, they are appealed from the district courts to a specialized appellate court, the Court of Appeals for the Federal Circuit, which is responsible for appeals in patent cases and other specific types of matters. Copyright cases, by contrast, are appealed to the courts of appeals for the circuits in which the matters are initially decided.

The limitation to federal jurisdiction for copyright and patent matters differs from the treatment of trademark cases. Unlike patents and copyrights, trademarks are governed by both federal and state statutes and caselaw. The federal law regarding trademarks, the Lanham Act, does not preempt all state law claims. States therefore are able to provide additional protections against the misuse of unregistered marks, unfair competition, and similar wrongdoing.

Additionally, the Lanham Act allows for concurrent federal and state jurisdiction so that both federal and state courts can adjudicate federal trademark cases. Conversely, federal courts often hear state law trademark claims either as a matter of supplemental jurisdiction or on diversity grounds. But despite the availability of both federal and state courts to enforce trademark rights, given the option, trademark owners tend to prefer the federal system, evidently because federal judges are perceived as more knowledgeable about trademark law.

United States Copyright Office Copyright Small Claims


Posted November 22, 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


Patent Laws

Posted October 23, 2018

The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads "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." Under this power Congress has from time to time enacted various laws relating to patents. The first patent law was enacted in 1790. The patent laws underwent a general revision which was enacted July 19, 1952, and which came into effect January 1, 1953. It is codified in Title 35, United States Code. Additionally, on November 29, 1999, Congress enacted the American Inventors Protection Act of 1999 (AIPA), which further revised the patent laws.

The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the United States Patent and Trademark Office to administer the law relating to the granting of patents and contains various other provisions relating to patents.