The Posner Law Firm

Privacy and Surveillance Law for

Attorneys, Businesses, Government, Charities, Trade Organizations, Public Interest Groups and People
Practice Area: Trade Secret and Copyright Litigation
By Steve C. Posner

Intellectual property law is unique in its constant tension between the law's historic respect for precedent and the need to deal with radical technologies that blur traditional boundaries. Moreover, since technology percolates almost uncontrollably through international boundaries, it is not enough to understand the law of one country. International law in the form of treaties and other agreements, and the laws of individual trading partners, misappropriating nations, and even (as in the USA) the laws of sovereign states. Preemption of state law by federal law is often an issue. Intellectual property is important in many areas of law -- including ones you might not expect. For example, trade secrets are protected in federal agriculture laws. Patents show up as assets subject to securities and probate litigation. Nor is the terminology always clear. Land patents are a wholly different animal from intellectual property patents.

Generally, four legal traditions are considered to fall under the umbrella of intellectual property law.

Patent Law: Description Protects a new and useful process, machine, manufacture, composition of matter, and improvements thereof. Specifically excludes ideas, laws of nature, scientific truths or principles and printed matter. Although patent law traditionally protects technology, in recent years business method patents have been issued, expanding the patent law's traditionall coverage. To file a patent, an attorney must be a member of the patent bar, registered with the federal Patent and Trademark Office. At KBT, we are not patent attorneys. However, we have been involved with patent litigation, which does not require admission to the patent bar.
a

International Treaties

Paris Convention, Patent Coopertion Treaty, European Patent Convention
a Federal Law The Patent Act is found in 35 USC 101 et seq.
a Colorado Law Patents are mentioned in Titles 4, 7, 8, 11, 12, 13, 15, 22, 23, 24, 30, 31, 34, 35, 36, 37, 38, 39 CRS.
Copyright Law: Description Protects works of authorship fixed in a tangible medium of expression. Ideas and facts are not protected. Computer software traditionally has been considered a work protectible by copyright law. In recent years, software patents also have been issued (an example of the blurring of traditional boundaries.)
a International Treaties Berne Convention, Universal Copyright Convention
a Federal Law U.S. Copyright Law is codified in 17 USC 101 et seq.
a Colorado Law Copyrights are mentioned in Titles 4, 6, 7, 13, 15, 18, 22, 24, 39 CRS. Copyrights are particularly protected by Art. 6-13 CRS.
Trademark Law: Description

Trademark law actually protects three distinct entities:

A trademark is any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods, including a unique product, from those manufactured or sold by others and to indicate the sources of the goods, even if that source is unknown.
A service mark means a mark used in the sale or advertising of services to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.
A tradename is a name used to identify a business entity. Although a business entity's name is not, in itself, protectible, it may be protectible as a trademark if it also identifies and distinguishes goods and/or services.

As a practical matter, a trademark can consist of: text, a slogan, a number, a design, stylized text, stylized text and design, a product shape, and possibly a product color. It must be different enough from previously existing marks so as not to deceive or cause confusion or mistake. It can be suggestive, descriptive, arbitrary or fanciful -- but it may not be generic (e.g., the simple word "hardware" cannot be made a trademark). A "common law" trademark can be created by first usage, but it is protected only in the geographical area of usage.

a International Treaties Madrid Agreement
a Federal Law U.S. Trademark Law is codified in Title 15 of the United States Code
a Colorado Law Trademarks are mentioneded in Titles 4, 6, 7, 8, 10, 12, 13, 18, 22, 23, 24, 25, 32, 35, 39 & 42 CRS. They are the particular focus of Art. 7-70 thru 7-73 CRS.
Trade Secret Law: Description Trade secrecy protection depends not on public registration or use, but its opposite -- reasonable efforts to keep an intellectual asset secret. Disclosure without protections invalidates trade secrecy protection. For a disclosure not to invalidate protections, the party receiving the disclosure must be made aware that the information is confidential and that the disclosure is subject to nondisclosure and nonuse requirements, or to a fiduciary obligation. To qualify a a trade secret, information must be valuable in the sense of providing a competitive advantage. Examples of trade secrets include technologies, concepts, software, documentation, designs or models, specifications, data, business plan, techniques, certain customer lists, bidding policies and procedures, certain marketing information.
a International Law No treaties protect trade secrets.
a Federal Law Trade secret protection is found throughout the U.S. Code and is mentioned in 346 statutory provisions or in the case law interpreting those provisions.
a Colorado Law Trade secrets are mentioned in Titles 6, 7, 8, 10, 13, 16, 18, 23, 24, 25, 34, 35, 39 & 40 CRS. Trade secrecy is particularly protected in Art. 7-74 CRS.

 
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TThe purpose of this website is to advertise the firm and offer information as a public service. Steve C. Posner is admitted to practice in Colorado, New York and California, he has not practiced in California (inactive status). The firm does not endorse, take responsibility for, or control any information on sites to which links are provided. Nothing in this website is intended as legal advice. You are strongly advised to seek legal counsel regarding any issues you may face.