My IP Outline - Intro to Intellectual Property R Anthony...

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Unformatted text preview: Intro to Intellectual Property R. Anthony Reese – Fall 2003 by Jordan S. Hatcher This Outline is Subject to a Creative Commons License Please See: http://creativecommons.org/licenses/nc-sa/1.0/ State Law Rights in Undeveloped Ideas Rights in Undeveloped Ideas Undeveloped Idea = the physical manifestation of an idea that is not yet developed into a traditional IP area Policy – an idea should be free for all to use until someone is able to translate the idea into a sufficiently useful form. [Richter p.29] Problems with protecting undeveloped ideas want to encourage further development (people could stop here if protect) administrative problems – proof, knowledge, scope… less incentive needed to create undeveloped ideas (easy, nothing new under sun) access – don’t we want everyone to be able to use ideas? Legal Theories behind Undeveloped Ideas: Misappropriation of Property [typically never win] property rights are rights against the whole world scope of right – difficult to set, especially since novelty is effected by time must be novel generally [see below] Quasi-contract / unjust enrichment [rarely, but can win] 1) only against “unjust” use [whatever that is] Contract [better route] 2) express or implied 3) better fit b/c only between voluntary parties, freedom to k 4) typical difficulties w/ getting a k over an undev idea are that sellers don’t want to reveal unless they have a k, and buyers don’t want to k unless a good idea Typical Elements of a Misappropriation of an Undeveloped Idea claim p.27 1) The idea is novel 2) The idea is in a concrete form 3) Defendant made use of the idea Standards Novelty – not common or generally known o More springs / sagging problem too well known [ Lueddecke v. Chevrolet p32] Concrete (idea sufficiently developed) Ex: Elvis died of a drug interaction = too abstract, but Elvis died of cortisone withdrawal due to conspiracy over 1.3 million = concrete [ Sellers v. ABC p.25] Ex: Must have some specificity and not be totally obvious—idea to move some movable stuff around not specific enough [ Lueddecke v. Chevrolet p32] Novelty: 1) Novel to buyer – sufficient for consideration for k claims [ Nadel Supp I] 2) Novel generally – standard for misappropriation claims, b/c right against whole world Factors for novelty [ Nadel Supp I p5] idea’s specificity or generality (concreteness) commonality uniqueness commercial availability Could be so obvious that too obvious to support k claim as matter of law [ Supp I p5] See also Masline – selling ad on trains pp 37,45 Note: take into account custom and practice of industry and whether submitter was a professional idea person....
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My IP Outline - Intro to Intellectual Property R Anthony...

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