SECTION 101 OF THE SECTION 101 OF THE PATENT LAWPATENT LAW

Describes what is patentable subject Describes what is patentable subject matter:matter:

"Whoever invents or discovers any new and "Whoever invents or discovers any new and useful process, machine, manufacture, or useful process, machine, manufacture, or composition of matter, or any new and composition of matter, or any new and useful improvement thereof, may obtain a useful improvement thereof, may obtain a patent therefore, subject to the patent therefore, subject to the conditions and requirements of this title."conditions and requirements of this title."

Brandir TestBrandir Test

If the design elements reflect a merger of aestheticIf the design elements reflect a merger of aestheticand functional considerationsand functional considerations

not separatenot separate

But if the design elements reflect the designer's But if the design elements reflect the designer's artisticartistic

judgment exercised independently of functional judgment exercised independently of functional influencesinfluences

separabilityseparability

THE CONSTITUTIONAL THE CONSTITUTIONAL LANGUAGELANGUAGE

Article 1 section 8 cl. 8Article 1 section 8 cl. 8

". . . Congress shall have Power . . . to ". . . Congress shall have Power . . . to promote the progress of science and useful promote the progress of science and useful arts, by securing for limited times to arts, by securing for limited times to authors and inventors the exclusive right to authors and inventors the exclusive right to their respective writings and discoveries."their respective writings and discoveries."

ChakrabartyChakrabarty

Patent Examiner Grounds for DenialPatent Examiner Grounds for Denial

1) Product of Nature1) Product of Nature

2) Living Creature2) Living Creature

Patent ActPatent ActSection 112Section 112

¶1. The specification shall contain ¶1. The specification shall contain a a written descriptionwritten description of the invention, of the invention, and of the manner and process of making and of the manner and process of making and using it, in such full, clear, concise, and using it, in such full, clear, concise, and exact terms as and exact terms as to enableto enable any person any person skilled in the art to which it pertains or skilled in the art to which it pertains or with which it is most nearly connected, with which it is most nearly connected, to make and use the same, and shall set to make and use the same, and shall set for the for the best modebest mode contemplated by the contemplated by the inventor of carrying out his invention.inventor of carrying out his invention.

SECTION 112 OF THE SECTION 112 OF THE PATENT STATUTEPATENT STATUTE

¶1. The specification shall contain ¶1. The specification shall contain a written a written descriptiondescription of the invention, and of the manner of the invention, and of the manner and process of making and using it, in such full, and process of making and using it, in such full, clear, concise, and exact terms as clear, concise, and exact terms as to enableto enable any any person skilled in the art to which it pertains or person skilled in the art to which it pertains or with which it is most nearly connected, to make with which it is most nearly connected, to make and use the same, and shall set for the and use the same, and shall set for the best modebest mode contemplated by the inventor of carrying out his contemplated by the inventor of carrying out his invention.invention.

¶2. The specification shall conclude with one or ¶2. The specification shall conclude with one or more claims particularly pointing out and distinctly more claims particularly pointing out and distinctly claiming the subject matter which the applicant claiming the subject matter which the applicant regards as his invention.regards as his invention.

THE ORIGINAL WRITTEN DESCRIPTION:THE ORIGINAL WRITTEN DESCRIPTION:

A sectional sofa segment with a pair of reclining seat A sectional sofa segment with a pair of reclining seat sections built into it with a console that sections built into it with a console that accommodates the controls. The push button accommodates the controls. The push button controls may be mounted on the top or sides.controls may be mounted on the top or sides.

ONE OF THE CLAIMS INVALIDATED BY THE ONE OF THE CLAIMS INVALIDATED BY THE COURT:COURT:

A sectional sofa comprising a pair of reclining seats, a A sectional sofa comprising a pair of reclining seats, a fixed console, and a pair of control means mounted fixed console, and a pair of control means mounted on the double reclining sofa seat section.on the double reclining sofa seat section.

NOVELTYNOVELTY

§102(a)§102(a)

The invention was known or used by The invention was known or used by others in this country, or patented or others in this country, or patented or described in a printed publication in described in a printed publication in this or a foreign country, before the this or a foreign country, before the invention thereof by the applicant invention thereof by the applicant for patent . . .for patent . . .

NOVELTYNOVELTY§102(a)§102(a)

The invention was known or used by others in this The invention was known or used by others in this country, or patented or described in a printed country, or patented or described in a printed publication in this or a foreign country, before the publication in this or a foreign country, before the invention thereof by the applicant for patent.invention thereof by the applicant for patent.

§102(b)§102(b)

The invention was patented or described in a printed The invention was patented or described in a printed publication in this or a foreign country or in public use publication in this or a foreign country or in public use or on sale in this country, more than one year prior to or on sale in this country, more than one year prior to the date of the application for patent in the United the date of the application for patent in the United States.States.

Fact Variation: HallFact Variation: Hall

The dissertation is published on The dissertation is published on January 1January 1

Hall makes his discovery on Hall makes his discovery on February 1February 1

Hall files for a patent on March 1Hall files for a patent on March 1

LaramiLarami

[a] toy comprising an elongated housing [a] toy comprising an elongated housing having a chamber therein for a liquid, a having a chamber therein for a liquid, a pump including a piston having an pump including a piston having an exposed rod and extending rearwardly of exposed rod and extending rearwardly of said toy facilitating manual operation for said toy facilitating manual operation for building up a appreciable amount of building up a appreciable amount of pressure in said chamber for ejecting a pressure in said chamber for ejecting a stream of liquid therefrom an appreciable stream of liquid therefrom an appreciable distance substantially forwardly of said distance substantially forwardly of said toy, and means for controlling the ejection.toy, and means for controlling the ejection.

Copyright StatuteCopyright Statute

Original works of authorship fixed in Original works of authorship fixed in any tangible means of expressionany tangible means of expression

InfringementInfringement

ownership of a valid copyrightownership of a valid copyright

copying of elements that are originalcopying of elements that are original

Copyright Act Section Copyright Act Section 101101

You do not get copyright protection for the You do not get copyright protection for the design of a useful article:design of a useful article:

unless the "design incorporates pictorial, unless the "design incorporates pictorial, graphic or graphic or

sculptural features that can be identified sculptural features that can be identified separately separately

from, and are capable of existing from, and are capable of existing independently of independently of the utilitarian aspects of the utilitarian aspects of the article."the article."

Section 101 Defines Section 101 Defines Collective Work as:Collective Work as:

"a work such as a periodical issue, "a work such as a periodical issue, anthology, oranthology, or

encyclopedia, in which a number of encyclopedia, in which a number of contributions, contributions,

constituting separate and independent constituting separate and independent works inworks in

themselves are assembled into a themselves are assembled into a collective whole."collective whole."

1976 Copyright Act 1976 Copyright Act Defines Work for HireDefines Work for Hire

1) a work prepared by an employee within the scope of his1) a work prepared by an employee within the scope of his or her employmentor her employment

oror2) a work specially ordered or commissioned for use as a2) a work specially ordered or commissioned for use as a contribution to a collective work, as a translation, as a part contribution to a collective work, as a translation, as a part of a motion picture or other audio-visual work, as aof a motion picture or other audio-visual work, as a translation, as a supplementary work, as a compilation, as translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in atest, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be written instrument signed by them that the work shall be considered a work made for hire.considered a work made for hire.

Commonlaw Agency Commonlaw Agency FactorsFactors

Hiring party's right to control the manner and means of the Hiring party's right to control the manner and means of the projectproject

The skill level requiredThe skill level requiredThe source of the tools usedThe source of the tools usedThe location of the workThe location of the workThe duration of the relationshipThe duration of the relationshipWhether the hiring party has the right to assign other Whether the hiring party has the right to assign other

projectsprojectsThe extent of the hiring party's discretion over work hours The extent of the hiring party's discretion over work hours

(when; how long)(when; how long) The method of payment (by the project v. by the hour)The method of payment (by the project v. by the hour)Whether the hiring party has a role in hiring and paying subs Whether the hiring party has a role in hiring and paying subs

or assistantsor assistantsWhether the hiring party is in the regular business of Whether the hiring party is in the regular business of Whatever the project isWhatever the project isProvision of employee benefits; and tax treatmentProvision of employee benefits; and tax treatment

Copyright Act Section Copyright Act Section 107107

No infringement for fair use for No infringement for fair use for "purposes such as criticism, "purposes such as criticism, comment, news reporting, teaching comment, news reporting, teaching (including multiple copies for (including multiple copies for classroom use), scholarship or classroom use), scholarship or researchresearch

Fair Use Factors IncludeFair Use Factors Include

1. purpose and character of the use (including 1. purpose and character of the use (including whetherwhether

it is commercial or for nonprofit educational it is commercial or for nonprofit educational purposespurposes

2. nature of the copyrighted work2. nature of the copyrighted work

3. amount and substantiality used3. amount and substantiality used

4. effect upon the potential market for or value of4. effect upon the potential market for or value of

Harper & RowHarper & Row

The author's implied consent to a The author's implied consent to a reasonable and customary usereasonable and customary use when when he released the work for public he released the work for public consumption.consumption.