Unformatted text preview: ECON189: FINAL EXAM STUDY GUIDE (December 8th, 7:00-10:00PM) Chapter 27: Intellectual Property 1. Introduction a. Intellectual property is a major source of wealth. 2. Patents a. Basic Info about Patents i. Patent: a grant by the government permitting the inventor exclusive use of an invention for 20 years; during this period, no one can make, use, or sell the invention without the inventor's permission. ii. Not available solely for an idea... only available for the tangible application of that idea. iii. Business method patents have become controversial 1. ((Involve data processing or mathematical calculations used in business)) 2. Ex: Amazon.com just patented its One-Click shopping method a. Barnes and Noble couldn't use their Express Lane check out method on their website because of this... Amazon got an injunction and Barnes and Noble had to add another step to their check out method. 3. However, this law changed recently... a. US Court of Appeals (Federal Circuit) ruled that for a process to be patentable it must either be tied to a particular machine or it must transform an article. i. "Machine-or-Transformation Test" b. Essentially: Inventors cannot patent a process that simply involves idea. i. ((Undetermined how this will effect the Amazon decision discussed above)) b. Requirements for a Patent i. To obtain a patent, the request must meet all of the following tests: 1. Novel a. The invention cannot be (1) known or already used in this country or (2) described in publication here or overseas. b. EX: Inventor discovers a new use for chemicals, but he cannot patent it because the chemicals were already described in prior publications even though the new use had not. 2. Non-obvious a. Not patentable if it is obvious to someone with ordinary skill in that field 3. Useful a. Must be useful... i. Doesn't need to be commercially valuable, but it must have some current use. ii. Having scientific interest is not enough iii. EX: a company was denied a patent involving a novel process for making steroids, but it was not approved because the steroids did not have any therapeutic value. c. Patent Application and Issuance i. Basics 1. To obtain a patent, must file with Patent and Trademark Office (PTO) in Washington, DC. 2. Inventor can appeal if their patent request is turned down ii. Priority between Two Investors 1. Generally, the person who invents and puts the invention into practice has priority over the first filer iii. Prior Sale 1. Inventor must apply for the patent within one year of selling the product commercially 2. ((Encourages prompt disclosure of inventions)) iv. Provisional Patent Application 1. Inventors who are unsure of the value of their ideas might get a PPA first in order to save money 2. PPA lasts for a year 3. Gives inventors the opportunity to show their ideas to potential investors without incurring the full expense of a patent application. v. International Patent Treaties 1. Paris Convention for the Protection of Industrial Property a. Requires each member country to grant to citizens of member countries the same rights under patent law as its own citizens enjoy 2. EX: French patent office can't reject a patent application from an American as long as the American complied with all French laws. 3. Copyrights a. Basics i. The holder of a copyright owns the particular expression of an idea, but not the underlying idea of method of application. 1. EX: you can copyright a book that you write about the rules of baseball, but you can't copyright the rules of baseball themselves ii. Idea doesn't have to be novel... can have the same underlying idea but a different expression of it. b. c. d. e. 1. EX: The many different types of Romeo and Juliet movies that there are on the market. iii. Copyright is valid until 70 years after the death of the original last living author 1. In the case of a corporation, the copyright lasts 95 years from publication or 120 years from creation. 2. Once a copyright expires, anyone may use the material iv. A work is already copyrighted once it is in tangible form v. Registration with the Copyright Office of the Library of Congress is only necessary if the holder wishes to bring suit to enforce the copyright. vi. Copyright symbol isn't necessary in the US, although a lot of people use it Infringement i. A violation of the Copyright Act (uses copyrighted material without permission) ii. To prove a violation, a plaintiff must present evidence that the work was original and that either: 1. The infringer actually copied the work OR 2. The infringer had access to the original and the two works are substantially similar. First sale doctrine i. Under the First Sale Doctrine, you have the legal right to sell a CD that you buy and ultimately don't like. 1. A person who owns a lawfully made copy of a copyrighted work can sell or otherwise dispose of that copy. 2. Does not permit you to make a copy. Fair use i. Basics: 1. The point of copyright laws is to encourage creative work 2. The Doctrine of Fair Use permits limited use of copyrighted material without permission of the author for purposes such as criticism, news reporting, scholarship, or research. 3. Courts generally will not permit use that decreases the revenues for the person owning the copyright. 4. EX: When professors put together readers, they (or the copy shop) must obtain permission and pay a royalty if they are using copies of another author's work... a. But if the teacher sees an article in the morning and decided to print it out and distribute it to the students to prove a point about a class topic, it is ok. ii. Internet searching 1. Google issues Digital Music and Movies i. The Digital Millennium Copyright Act 1. Provides that: a. It is illegal to delete copyright information, such as the name of the author or the title of the article b. It is illegal to circumvent encryption or scrambling devices that protect copyrighted works i. Ex: some software programs are designed to only be copied once... if you hack this and make it so that you can make more than one copy, you are in violation of this act. c. It is illegal to distribute tools and technologies used to circumvent encryption devices. i. Cant help other people to copy that software program. f. International Copyright Treaties i. Berne Convention requires member countries to provide automatic copyright protection to any works created in a member country. 1. Protection expires 50 years after the death of the author. 4. Trademarks a. Basics i. Trademark: any combination of words and symbols that a business uses to identify its products and distinguish them from others b. Ownership and Registration i. Under common law, the first person to use a trademark owns it ii. Registration under the Federal Lanham Act is not necessary... but membership has some benefits: 1. Even if a trademark was only used in one or two states, registration makes it valid nationally 2. It notifies the public that the mark is in use... anyone who applies to be registered will first search the public register and see that you already have that mark 3. The holder of a registered mark generally has the right to use it as an Internet domain name. c. Valid Trademarks i. To be valid, a trademark must be distinctive... it must clearly distinguish one product from another. ii. The following categories are not distinctive and cannot be trademarked: 1. Similar to an existing mark a. ((Obvious)) 2. Generic trademarks a. Ex: shoe, book, car b. Some names started as trademarks and became generic i. Once a name is generic, the owner loses the trademark because the name can no longer be used to distinguish one product from another 1. Ex: zipper, band-aid, nylon 3. Descriptive marks a. Ex: low fat, green, crunchy 4. Names a. Generally won't grant a trademark for a surname. 5. Scandalous or Immoral Trademarks a. ((Obvious)) d. Domain Names i. The Anticybersquatting Consumer Protection Act permits both trademark owners and famous people to sue anyone who registers their name as a domain name in bad faith. 1. Rightful owner of the name is entitled to damages of up to $100,000.00 2. Ex: Prevents the Princeton Review from holding onto Kaplan.com just to inconvenience their rival. e. International Trademark Treaties i. Paris Convention 1. if someone registers a trademark in one country, then they have a grace period of 6 months during which they can file in any other country using the same original filing date ii. Madrid Agreement 1. Any trademark registered with the international registry is valid in all signatory countries. iii. Trademark Law Treaty 1. Simplifies the process of applying for trademarks around the world 2. If you're seeking international trademark protection, you only have to file one application in English, with the PTO, who will send the application to the World Intellectual Property Organization, who will transmit it to each country in which the applicant would like to apply for trademark protection. 5. Trade Secrets a. Ex: the formula for Coca-Cola b. Can be a company's most valuable asset c. Theft of trade secrets costs US companies about $100 Billion per year d. Uniform Trade Secrets Act (UTSA) i. A trade secret is a formula, device, process, method, or compilation of information that, when used in business, gives the owner an advantage over competitors who do not know it. e. What to consider when determining if info is a trade secret: i. How difficult and expensive was it to obtain the information? Was it readily available from other sources? ii. Did the information create an important competitive advantage? iii. Did the company make a reasonable effort to protect it? f. A company can patent trade secrets... but there is a downside to this: i. Patent registration requires that the formula be disclosed publicly... after the patent runs out, everyone knows it and can use it 1. Not good for companies like Coca-Cola, who want to keep their formula secret. Chapter 28: Real Property 1. Nature of Real Property a. A grantor is an owner who conveys his property, or some interest in it, to someone else (called the grantee). b. Real property can be: i. Land: Most common and important form of real property ii. Buildings iii. Subsurface Rights: Can sell rights to this and still own the land above iv. Air rights v. Plant life vi. Fixtures: Goods that have become attached to the real property 1. An object is a fixture if a reasonable person would consider the item to be a permanent part of the property. 2. To decide this, look at the following factors a. Attachment: if removing it would cause damage, it's a fixture b. Adaptation: Made for or adapted especially for attachment to the particular property c. Other Manifestations of Permanence: the original owner clearly intended for the item to remain permanently. Freeman v. Barrs: Was cattle scale a fixture? Decision: Yes; Reasoning: Removing it would have been extremely costly and could've caused damage to the rest of the structure. 2. Estates in Real Property The different rights that someone can hold in real property are known as estates or interests. a. Freehold Estates i. [[Owner has the present right to possess the property and to use it in any lawful way he/she wants.]] ii. Three different kinds: 1. Fee Simple Absolute a. Provides the owner with the greatest possible control of the property. b. Most common form of land ownership c. Nothing in the estate itself limits the owner's use of the land d. Owner may pass on the entire estate to her heirs 2. Fee Simple Defeasible a. May terminate upon the occurrence of some limiting event b. Ownership will revert the original owner or the original owner's heirs if that event occurs. c. Because the heirs might have a future interest in the land, they are said to have a future interest in 100 acres, for example 3. Life Estate a. An estate for the life of some named person b. The moment that person dies, the ownership in the property will revert back to the original owner or the original owner's heirs. b. Concurrent Estates [[When two or more people own real property at the same time]] i. Tenancy in common: owners have an equal interest in the entire property 1. Each co-tenant has the right to sell her interest in it to someone else, or to leave it to her heirs upon her death. ii. Joint tenancy: similar to a tenancy in common, but... 1. Upon the death of a joint tenant, that owner's interest passes to the surviving joint tenants... NOT to that person's heirs. iii. Tenancy by the Entirety and Community Property 1. Provides special rights for married couples 2. Allow one spouse to protect some property from the other, and from the other's creditors. iv. Condominiums: Owner has fee simple absolute in his particular unit, typically v. Cooperatives: Residents don't typically own their unit 1. They are shareholders in a corporation that owns the buildings and leases specified units to the shareholders. 3. Nonpossessory Interest a. Easements i. Gives one person the right to enter land belonging to another and make a limited use of it, without taking anything away. ii. Created in 2 ways 1. Grant: occurs when landowner expressly intends to convey an easement to someone else 2. Reservation: occurs when the owner sells the land but retains some right to enter the property b. Profit i. Gives one person the right to enter land belonging to another and take something away ii. Example: you own property that has oil underneath it, so you sell a profit to an oil company. You get the cash upfront, and the company gets the money from the sale of the oil that they are drilling. c. License i. Gives the holder temporary permission to enter upon another's property. ii. Temporary right iii. Example: A ticket to a basketball game... your "license" (aka, the ticket) can be taken away and you can be kicked out of the game if you try to start trouble. d. Mortgage i. A security interest in real property ii. Mortgagee obtains a lien on the house... (The bank has the right to foreclose on it if the borrowers stop making the payments) 4. Sale of Real Property a. Seller's Obligations Concerning the Property i. Implied Warranty of Habitability 1. Most states impose this on all builders selling new homes 2. Whether the builder wants to or not, building has to meet the criteria for having a. (1) Adequate materials and b. (2) Good workmanship. 3. Comes from unequal positions of buyer and seller ii. Duty to Disclose Defects 1. Seller must disclose facts that a buyer does not know and cannot readily observe if they materially affect the property's value b. Sales Contract and Title Examination i. Agreement to sell real property must be in writing (Statute of Frauds) ii. Title examination: once the terms have been agreed to and the contract is signed, the lawyer will search through the local land registry for all documents that relate to the property... 1. To make sure that the seller actually owns the land 2. To see if the title is subject to other claims (easements, mortgages, etc.) c. Closing and Deeds i. When the checking of title is complete ii. The meeting at which the property is actually sold iii. Seller brings the deed and signs over to buyer d. Recording i. Filing it with the official state registry ii. Critical step- puts the world on notice that the grantor has sold the land 5. Adverse Possession o Allows someone to take title to land if he/she demonstrates that the possession is a. b. c. d. Exclusive Notorious Adverse to all others, AND Continuous Entry and Exclusive Possession i. Must take physical possession of the land and be the only one to do so ii. Can't have someone occupying the land or be sharing it with someone Open and Notorious Possession i. Presence must be visible and generally known in the area ii. If there is an owner, he will be on notice that his ownership is contested. iii. If someone is making secret use of the land, then no one else will know, and thus he cannot possess the land A Claim Adverse to the Owner i. User must clearly assert that the land is his ii. Doesn't need to register a deed or take other legal steps iii. MUST act like the sole owner 1. If the user occupies the land with the real owner's permission, there is no adverse claim and the user cannot acquire rights to the property. Continuous Possession for the Statutory Period i. Some states require 10, 20, or 5 year periods ii. Getting shorter and shorter, however iii. Residential use: the user typically has to be there year round iv. Wilderness and vacation areas are different... can be seasonal 6. Land Use Regulation a. Zoning i. Zoning statutes are state laws that permit local communities to regulate building and land use. ii. Example: a town's zoning ordinance may divide a town into industrial zones, commercial zones, and residential zones (to name a few). b. Eminent Domain i. The power of the government to take private property for public use. ii. I.e.: when the government needs land to construct a highway, airport, university, or public housing iii. All levels of government have this power (federal, state, and local) iv. Fifth Amendment grants citizens just compensation for this, however v. Given "fair price"- reasonable market value of the land vi. If the owner refuses? 1. Government can file a suit seeking condemnation of the land: court order specifying what compensation is just and awarding the title to the government Chapter 29: Landlord-tenant Law 1. Introduction a. When an owner of a freehold estate allows another person temporary, exclusive possession of the property, the parties have created a landlord- tenant relationship. i. The landlord conveys a leasehold interest to the tenant... (a right to temporary possession.) b. Three Legal Areas Combined i. Property, contract, and negligence c. Lease i. Statute of frauds generally requires that a lease be in writing 1. Oral lease can be enforced if short term ii. At minimum, the lease must state: 1. Names of the parties 2. Premises being leased 3. Duration of the agreement 4. Rent iii. Many leases include covenants 1. A promise by the landlord or the tenant to do something or to refrain from doing something. 2. Types of Tenancy (4) a. Tenancy for Years i. Any lease for a stated, fixed period 1. Ex: Renting out an apartment for the summer months of June, July, and August 2. Ex: A store in a mall, rent from 1/1/09-1/1/14 ii. Terminates automatically when the agreed period ends b. Periodic Tenancy i. Created for a fixed period and then automatically continues for additional periods until either party notifies the other of termination. ii. Most common form of tenancy 1. Ex: You rent an apartment from month to month, with rent payable on the first... your contract will automatically continue unless you say otherwise. It can also be in periods of years. c. Tenancy at Will i. No fixed duration and may be terminated by either party at any time. ii. Unusual iii. Vague, no specified rental period and payment iv. EX: a tenant farmer can use part of his crop as rent v. Can be terminated by any party at any time, so it doesn't provide much security for the landlord or the tenant. d. Tenancy at Sufferance i. Occurs when a tenant remains on the premises, against the wishes of the landlord, after the expiration of a true tenancy. ii. Landlord has the option of seeking to evict the tenant or forcing the tenant to pay rent for a new rental period. 3. Landlord's Duties a. Duty to Deliver Possession i. Landlord's duty to make the rented space available to the tenant b. Quiet Enjoyment i. Right to use the property without the interference of the landlord ii. All tenants are entitled to this iii. Lease doesn't have to include this covenant... law implies the right 1. If the landlord DOES interfere... he has breached the contract and is liable for damages to the tenant. iv. Most common interference with this is EVICTION 1. However, some evictions are legal... and some are illegal. 2. There are two types of eviction... a. (1) Actual Eviction i. When the landlord prevents the tenant from possessing the premises. ii. EX: a landlord wants to get rid of "troublemaker" students, so waits until they are out of the house and then changes all of the locks.... She has actually evicted them. b. (2) Constructive Eviction i. When a landlord substantially interferes with the tenant's use and enjoyment of the premises. ii. Courts will construe certain behavior as the equivalent of an eviction iii. Essentially, not preventing the tenant from having access to the premises, but interfering substantially with their use and enjoyment that it is pretty much equivalent to an eviction 1. EX: a landlord gets complaints from a tenant about a heater... the apartment is in a cold place, like Alaska. The landlord doesn't fix it and says he's too busy... if the tenants move out, the landlord constructively evicted them, and he is liable to them for any damages they suffer. c. Duty to Maintain Premises i. Lease 1. Generally obligates the landlord to maintain the exterior of any buildings as well as the common areas. 2. Law may imply this if the lease doesn't explicitly state it ii. Building Codes 1. Minimum standards for commercial and/or residential property. 2. Generally, all rental property must comply with the building codes, whether the lease mentions the code or not. iii. Implied Warranty of Habitability 1. Requires that a landlord meet all the standards set by the local building code, or that the premises be fit for human habitation. iv. Tenant Remedies for Defective Conditions 1. Many states allow a tenant to withhold rent 2. If tenant notifies the landlord of a serious defect and the landlord doesn't do anything about it, the tenant can subtract the amount it took to fix it himself from the rent. 3. A landlord who refuses to repair significant defects is breaching the lease and possibly the state law. a. Tenant can sue for damages. v. Duty to Return Security Deposit 1. In many states, landlords must notify tenants about the state of their security deposit soon after they move out... a. If not, the landlord may owe the tenant damages of two or three times the initial deposit. d. Tenant's Duties i. Duty to Pay Rent 1. Landlord can apply a security deposit to unpaid rent 2. State statutes describe the procedures that landlords have to take to evict a tenant for nonpayment a. Serve a termination notice, wait for a court hearing... then landlord has to prove that rent wasn't paid. If there was no excuse, the court will grant an order evicting him. ii. Duty to Mitigate 1. When a tenant breaches a lease, the landlord must make a reasonable effort to mitigate damages. 2. If you fail to mitigate, you will also fail to recover losses iii. Duty to Use Premises Properly 1. A lease normally lists what a tenant may do in the premises and prohibits other activities a. Can't use a residential lease for a business b. Can't participate in illegal activities c. May not disturb neighbors i. Landlord has the right to evict anyone who unreasonably disturbs neighbors. 4. Change in the Parties a. Sale of the Property i. Generally, the sale of a leased property does not affect the lease but merely substitutes one landlord, the purchaser, from another, the seller. 1. New landlord cant raise the rent during the period of the existing lease 2. Cant change the tenant's rights b. Assignment and Sublease i. In assignment, the tenant transfers all of his legal interest to the other party. 1. New tenant will obtain all rights and liabilities under the lease. ii. The original tenant remains liable to the landlord unless the landlord explicitly releases him, which the landlord is unlikely to do. 5. Injuries a. Tenant's liability i. A tenant is generally liable for injuries occurring within the premises she is leasing, whether it is an apartment, a store, or otherwise. 1. EX: you let grease accumulate on your floor, and someone slips and falls. b. Landlord's liability i. A landlord must use reasonable care to maintain safe premises and is liable for foreseeable harm c. Crime i. Landlords may be liable in negligence to tenants and their guests for criminal attacks that occur on the premises. ii. Courts look at the following (4) factors when assessing this: 1. Nature of the crime 2. Reasonable person standard 3. Foreseeability 4. Prevalence of crime in the area ...
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This note was uploaded on 02/15/2012 for the course MGT 3303 taught by Professor Bell during the Fall '08 term at Texas State.
- Fall '08