Patents v Other IP
1. Trademark Law
a. Ex. X has shredded wheat patent, patents it, patent expires and says trademarked named. Suppose name wasn’t descriptive.
(A) During patent term name has become associated with both the product and your name. Need tm to talk about product. Singer, etc.
(B) If company wants to avoid giving up good will, they should use 2 names (Singer sewing machine) so they only lose exclusive rights to one (sewing machine) when patent expires.
(C) Rule: When patent ends if tm is so associated with product that it identifies the product, trademark ends. Policy motivation being that that is the only way to get real competition.
2. Trade secret Law
a. One theory: On way to patent system, allow trade secret law in interim. In reality, an inventor loses right to patent using ts for too long under 102(g). Is this good?
b. TS Pros
(A) Indefinite duration [as long as you protect it, obviously things like customer lists can lose value]
(B) Cheap (few formalities)
(1) Though depends on nature of good (easy to reverse engineer?)
(2) Also, both patents and ts have litigation aspects.
(C) No notice needed.
c. TS Cons
(A) Risk of losing protection: Rival could patent and block your use.
(B) Protection for things that don’t need protecting. We don’t get rid of ts because inventors of non-patentable inventions will waste money hiding their secrets. TS law makes economic sense.
(C) Narrow: Only prohibits others from disclosing or using invention if they acquired it by improper means (SA63). Someone could reverse engineer or independently invent it.
(D) Difficult to license.
d. Insurance Policy: Try patenting, if before eighteen months doesn’t look like its working out, withdraw and use trade secret law.
3. Why is this the only alternative? How about 2nd-tier patents?
a. Does fact 2 people came up with same invention mean we didn’t need patent system to get innovation. Not necessarily, just happened to end race around same time
b. What do we do for the second person who loses by a little bit?
a. Allows independent creation. We could do this in patents but don’t. Why?
(A) Worried about fraud? But your could req evidence…
(B) Undercuts value of patent, shouldn’t be randomly injured by independent inventor. But that happens with patent races too and we don’t care.
(C) Real reason is probably that identical independent creation doesn’t happen in copyrights and if it did, we wouldn’t believe that it was independent.
b. Kitsch: Make patents broad, assured nobody can take it away, give it early, but less duration in exchange. more scope, less duration.
5. Private Incentives: Patent system relies heavily on private incentives. PTO does light amount of work, private parties have to litigate. Why shouldn’t society litigate patents, Attorney-General? Ties into bounty idea, gov influencing market dynamics.
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