Jurisdiction and Procedure in Patent Disputes

A patent gives the patent owner an exclusive right in the subject matter of the patent. If another person or company makes, uses, sells, offers for sale, or imports the subject matter of the patent, that other person or company is said to be infringing on the patent rights of the patent owner. The patent owner in such a situation may wish to have the infringing conduct stop or may be entitled to monetary compensation for the infringing conduct. Because the United States Patent and Trademark Office (USPTO) has no jurisdiction over a patent once it issues it nor has any enforcement powers with regard to patent rights, the ordinary course of action to take against an act of patent infringement is to bring a lawsuit in court. In addition, a non-patent owner who believes that a patent issued by the USPTO is not valid may bring a lawsuit to challenge the validity of that patent.

State Copyright Law and Preemption

The law of copyright in the United States has become primarily federal since implementation of the Copyright Act of 1976. Thus, the rights conferred under copyright law are of a federal character and are vindicated in federal court. However, state law continues to fill in areas that are not explicitly governed by the federal Act. The areas that were not pre-empted by the passage of the Copyright Act are common law copyright and protection of pre-1972 sound recordings.

Passing Off

In "passing off" a seller associates another party's mark with a good or service. The law of passing off concerns unfair competition more generally in situations where there does not need to be a registered trademark or any other intellectual property right. Where a second business does something so that the public is misled into thinking that the activity is associated with a first business and as a result the first business suffers some damage, then it may be possible for the first business to sue the second business for passing off. One area where passing off might apply is where a second person uses an unregistered trademark normally used by a first person and in so doing passes off, or represents, goods or services in such away that the public is deceived into thinking the goods or services are being offered by the first person. This area of law arises out of the common law rather than statute

What is Intellectual Property?

Introduction

Patents

In order to encourage the advancement of science and technology, the federal government gives an incentive to inventors to disclose new ideas that have been embodied in inventions by granting a patent, which is a temporary right to exclude others from making, using, selling, offering to sell, or importing the patented invention without the inventor's permission. Activity that encroaches upon the right given by a patent is said to infringe the patent, for which an inventor may bring a lawsuit in order to obtain a remedy.