Property Law Primer for Multimedia Developers

by J. Dianne Brinson and Mark F. Radcliffe

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PATENT LAW

While copyright law is the most important intellectual property law for protecting rights in multimedia works, a multimedia developer needs to know enough about patent, trademark, and trade secret law to avoid infringing intellectual property rights owned by others and to be able to take advantage of the protection these laws provide.

Works Protected

Patent law protects inventions and processes ("utility" patents) and ornamental designs ("design" patents). Inventions and processes protected by utility patents can be electrical, mechanical, or chemical in nature. Examples of works protected by utility patents are a microwave oven, genetically engineered bacteria for cleaning up oil spills, a computerized method of running cash management accounts, and a method for curing rubber. Examples of works protected by design patents are a design for the sole of running shoes, a design for sterling silver tableware, and a design for a water fountain.

Obtaining Patent Protection

There are strict requirements for the grant of utility patents and design patents. To qualify for a utility patent, an invention must be new, useful, and "nonobvious." To meet the novelty requirement, the invention must not have been known or used by others in this country before the applicant invented it, and it also must not have been patented or described in a printed publication in the U.S. or a foreign country before the applicant invented it. The policy behind the novelty requirement is that a patent is issued in exchange for the inventor's disclosure to the public of the details of his invention. If the inventor's work is not novel, the inventor is not adding to the public knowledge, so the inventor should not be granted a patent.

To meet the nonobvious requirement, the invention must be sufficiently different from existing technology and knowledge so that, at the time the invention was made, the invention as a whole would not have been obvious to a person having ordinary skill in that field. The policy behind this requirement is that patents should only be granted for real advances, not for mere technical tinkering or modifications of existing inventions.

It is difficult to obtain a utility patent. Even if the invention or process meets the requirements of novelty, utility, and nonobviousness, a patent will not be granted if the invention was patented or described in a printed publication in the U.S. or a foreign country more than one year before the application date, or if the invention was in public use or on sale in the U.S. for more than one year before the application date.

Scope of Protection

A patent owner has the right to exclude others from making, using, or selling the patented invention or design in the United States during the term of the patent. Anyone who makes, uses, or sells a patented invention or design within the United States during the term of the patent without permission from the patent owner is an infringer - even if he or she did not copy the patented invention or design or even know about it.

Example: Developer's staff members, working on their own, developed a software program for manipulating images in Developer's multimedia works. Although Developer's staff didn't know it, Inventor has a patent on that method of image manipulation. Developer's use of the software program infringes Inventor's patent. Utility patents are granted for a period of 17 years. Design patents are granted for a period of 14 years. Once the patent on an invention or design has expired, anyone is free to make, use, or sell the invention or design.

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