Preface and Foreword

About OpenStax

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About OpenStax resources

About Introduction to Intellectual Property

This unique resource provides a clear, effective introduction to the legal issues and applications of Intellectual Property. The book is directed at students and ordinary citizens with no formal background in the field, and who may be studying entrepreneurship, marketing, computer science, engineering, or other fields. It is useful in an array of courses ranging from Business Law and Product Design to Information Systems and many others.

Answers to Questions in the Book

Assessment Questions' answers are provided in the Answer Key at the end of the text.

About the Authors

Foreword: The Intangible Advantage

I did not start out to be an inventor.

Patent Basics

Introduction

The Foundations of Patent Protection

Do Patents Really Promote Innovation?

Before reading this section, please watch the overview video below covering the usefulness of patents - how ironic that a system for granting exclusive rights to inventors is the greatest vehicle for knowledge-sharing and technology transfer ever devised by human beings.

What Is a Patent?

A patent is an intellectual property right granted by the government of a nation to an inventor that gives them the exclusive right to the invention for up to 20 years, in exchange for disclosing the details of the new technology to society for its ultimate benefit.

History of Patents in the United States

The legal foundation for U.S. intellectual property rights was laid by the Founders in 1787, in the very first Article of the U.S. Constitution, which outlined the precepts of our democratic society. In Article 1, Section 8, Clause 8 of the Constitution, Congress was given the authority to “promote the progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.[footnote]

U.S. Constitution Arr. 1, § 8

“Bargain” Theory vs. “Natural Rights” Theory

Every society that affirms intellectual property rights offers two justifications for doing so: the bargain or contract theory and the natural rights theory.

How Patents Foster Innovation

To help understand why patent rights not only encourage inventors but also promote the wider diffusion of new technology for the benefit of society, economic historians Naomi Lamoreaux and the late Kenneth Sokoloff suggested the following thought experiment:

The Weakness of Early Patent Systems

History of Patents: 500 BC to the 1700s

Given the commonsense logic of granting patents to stimulate invention, it comes as no surprise that patent- like incentives date all the way back to antiquity. In the ancient Greek city of
 Sybaris (located in what is now southern Italy) in 500 BC, “encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year.”[footnote]

 Charles Anthon,
 “*A Classical Dictionary*,”
 Harper & Bros, 1841.

Flaws of Early Patent Systems

Old World patent systems suffered from other major weaknesses as well. Patents for inventions imported from other countries were regularly granted, increasing the incentive for would-be patentees to copy
 the creative work of others rather than invent for themselves. And there was generally no systematic examination of patents by technical experts, in part because this was viewed as an intrusion upon the prerogatives of the Crown.

The Changing Tide

The elitist nature of early patent systems reflected the feudal economic relations that dominated that era. But by the late eighteenth century, capitalist economies were beginning to emerge across Europe, and in
 Britain, nationwide lobbies of manufacturers and patentees called for an overhaul of the patent system to bring it in line with this new economy. The needed reinvention would come not from Britain, however, nor even from France, which had its own
 democratic revolution soon after America’s. Instead, it took place in the newly liberated United States, where a vibrant capitalism unburdened by centuries of entrenched feudalism was developing.

America’s Uniquely Democratic Patent System

A Patent System For Everyone

Before reading this section, please watch the overview video below covering why America developed the world’s first patent system for the common man, and what we got out of it as a result (hint: the strongest economy on the face of the earth).

The Challenge Facing the Founders

The people who led the revolution and were later tasked with writing a Constitution were not concerned simply with creating lasting political structures that could defend the hard-won freedom and
 sovereignty of the newly liberated colonies. They also struggled to stimulate the rapid growth of industry to ensure the new nation’s economic survival.

Incentives Needed to Spur Economic Growth

As Jefferson wrote to his daughter Martha in 1787, it was precisely because America was bereft of Europe’s vast resources and left to its own devices that “we are obliged to invent and execute;
 to find means within ourselves, and not to lean on others.”

Creating a New Type of Patent System

The real genius of the Founders, however, lay in the way they consciously integrated democratic principles into the design of the world’s first modern patent system—principles that had a profound
 impact on the pace and direction of U.S. economic growth. These were reflected in six fundamental innovations in our patent system that departed from European practice.

Low Fees: Making Patents Affordable

The original patent law passed by Congress on April 10, 1790, deliberately set patent fees to a level any ordinary citizen could afford—initially \$3.70, but three years later raised to \$30. This was
 still less than 5 percent of the rate in Britain. Patent fees remained \$30 for the next 70 years, ensuring that virtually any citizen could participate in the Industrial Revolution.

Simplifying Application Procedures

The Founders greatly simplified administrative procedures in applying for a patent. This was no small thing when you consider that British applicants were forced to seek approval from seven different
 offices, and then twice—twice!—obtain the signature of the King. If they wanted a patent that covered Scotland and Ireland as well, they needed approval from ten more offices. British patent procedures were so Byzantine, in fact, that author Charles
 Dickens wrote a spoof of them entitled
 *A Poor Man’s Tale of a Patent*, in which his main character, an inventor, is forced to seek approvals from 34 offices, some of which had been abolished years before and no longer existed. Obviously, few inventors could hope to run
 this gauntlet successfully unless they had the wherewithal to hire very expensive patent agents to assist them.

Spreading New Technological Knowledge

Another unique feature of the U.S. patent system was its systematic effort to spread new technological knowledge throughout society, thereby creating a virtuous circle of innovation begetting more
 innovation. In Britain, patents were only open to public inspection after paying a fee, and until 1852 were not even officially printed, published, or indexed. In France, printed information about patents was limited to brief titles in patent
 indexes, intermittently published and only available in the office in which these had been originally filed.

Examining Patents for Validity

In a very crucial departure from Old World practice, the Founders created the world’s first examination system for patents to ensure their
 novelty,
 non-obviousness, and
 utility. The examinations were initially conducted by a committee composed of the Secretary of State (Thomas Jefferson), Secretary of War (Henry Knox), and Attorney General (Edmund Randolph). But this was found to be cumbersome, so in 1793 a simple registration system was established. It turned out, however, that without the examination of applications for novelty, non-obviousness, and utility, the validity of issued patents began to be questioned. So the reforms of the 1836 Patent Act specified that henceforth applications would be scrutinized by technically trained examiners to ensure that the invention represented a genuine advance in the state of the art.

No “Working Requirements” Reduced Monopoly Control

The fifth distinguishing feature of the U.S. patent system was the lack of any sort of “working requirements.” In the debate over HR-41, the bill that became the first U.S. patent law in 1790, “the Senate suggested requiring patentees to make products based on the patent or license others to do so. But the House rejected this as an infringement of patentees’ rights.”[footnote]

Op. cit., Khan.

Creating a Market for New Technology

The sixth unique feature of the U.S. patent system—and along with the refusal to impose working requirements, the one that had the greatest impact on future U.S. economic growth—was “an explicit
 provision for the sale of patent rights [that] both the courts and the U.S. Patent Office acted to facilitate.”[footnote]

 Naomi R. Lamoreaux and Kenneth L. Sokoloff,
 “*Inventive Activity and the Market for Technology in the United States: 1840O1920*,”
 Working Paper 7107, National Bureau of Economic Research, Cambridge, Mass. 1999.

The Positive Effects of Licensing

The Founders’ decision to foster NPEs and patent licensing proved crucial to America’s rapid technological progress and economic growth. Indeed, patent records from the nineteenth century reveal that
 more than two-thirds of the “great inventors” of the Industrial Revolution, including Thomas Edison and Elias Howe, were NPEs who specialized in invention and licensed some or all of their patents to outside enterprises for development into new
 products.[footnote]

 B.Zorina Khan and Kenneth L.Sokoloff,*“Intellectual Property Institutions in the United States: Early Development and Comparative Perspective*,”
 World Bank Research Workshop, July 17-19, 2000

A New Species called “Patent Trolls”

To be sure, there is new a species of NPE known as “patent trolls” who use low-quality patents to extort so-called “license fees” from small businesses unable to pay the cost of standing up to them
 in court. But their activities have nothing in common with real patent licensing.

A Patent System for Everyone

In sum, these six unique features of the U.S. patent system—low fees, simplified procedures, examination of applications by trained experts, systematic disclosure of new technological knowledge, lack of
 “working requirements,” and encouragement of robust trade in patent rights—all had a powerfully beneficial impact on the nation’s economic growth.

The Role of the U.S. Legal System

U.S. Patent Law vs. European Patent Law

Just as with any other property right, patent rights would be meaningless without the ability to enforce them in court. And from the earliest days of the patent system, says Khan, “Our legal
 system remained true to the Constitution in the belief that the defense of rights in patented invention was important in fostering industrial and economic development.”

Changes in U.S. Patent Law Through the Years

Over the years, of course, that balance has moved back and forth between relatively stronger versus weaker enforcement of patent rights. With the rise of the robber barons in the late
 nineteenth century, government and the courts increasingly viewed patents through the prism of antitrust, in some cases even compelling large firms like IBM to license their patents to competitors. Then with the advent of the high-tech revolution in
 the 1980s, antitrust concerns faded and the courts began once again to view stronger patent rights as helpful in fostering innovation.

An “Explosion” of Patent Litigation?

Patent litigation, of course, has always been an integral feature of the U.S. patent system. The first patent case on record was that of Benjamin Folger, whose patent for the production of candles
 was invalidated by the district federal court for New York in 1792. This was merely the first of many hundreds (and eventually thousands) of cases in which patent litigation served the important function of settling either the validity or the
 disputed ownership of the rights to critical new technologies—the litigation between telephone inventors Alexander Graham Bell and Elisha Gray being perhaps the most famous case in point. By doing so, the courts provided greater certainty regarding
 the value of such rights to entrepreneurs and investors alike.

What the U.S. Patent System Wrought

Creating the World’s Most Successful Economy

In 1630, the puritan John Winthrop, future governor of Massachusetts colony, declared that “We shall be as a city upon a hill, the eyes of all people are upon us.”

Every Breakthrough Spurs Patenting Spikes

The patent system’s central role in fostering innovation can be seen in the patenting spikes that occur with every major industrial breakthrough. A major surge in patenting took place in the
 1880s, for example, when the number of new patents issued each year jumped 56 percent to about 20,000, compared with the 12,000 issued yearly during the previous decade. This patent boom corresponded with rapid advances in the emerging railroad,
 telegraph, telephone, and electric light and power industries that signaled the industrialization of the U.S. economy.

Patents and the American Dream

It’s not only the economy that the patent system helped shape, but the culture and consciousness as well. As the eminent historian Gordon S. Wood observed in his 2010 book
 *Empire of Liberty*,

Patent-Eligible Inventions

What, Exactly, Can You Patent?

Title 35 of the United States Code (the Patent Act) allows anyone who invents or discovers any new, non-obvious, and useful machine, manufacture, process, or composition of matter—or who makes an improvement of any of the above—to obtain a patent.[footnote]

 35 U.S.C § 101.

Product or Process?

Products are physical things—whether they be machines (a new type of robotic welder), manufactures (an artificial knee made of titanium), or compositions of matter (a new chemical “superglue” for binding materials
 together). In this photo, Elon Musk observes the robotic arms in the Tesla Motors factory. Specialized manufacturing equipment like this are patentable products.

You Cannot Patent Ideas

All patented inventions fit into one of these four categories: machine, manufacture, process, or composition of matter. But not everything that fits in one of these four categories can be patented. And the most
 important reason why one thing is patentable and another is not lies in the difference between ideas and applications.

Mathematical Formulas Not Patentable

There are other discoveries that fall into the broad category of abstract ideas and are thus unpatentable. You cannot patent a mathematical formula. You cannot patent a law of nature, such as Einstein’s E=MC2. And you cannot patent natural phenomena like electricity (discovered by William Gilbert in 1600) or the Higgs particle that gives all matter its mass (discovered by researchers at the Large Hadron Collider on July 4, 2012). These all exist independently of human intervention, whether we have discovered them or formulated their rules yet or not, and must be freely available to all of humanity for its understanding and betterment.

Can You Patent Computer Software?

The boundary between ideas and applications might seem clear, but it has become blurred since the advent of computer technology 40 years ago, especially regarding the patentability of software.

Mixed Verdicts on Software Patentability

The federal courts and the U.S. Supreme Court have tried to clarify the limits of patentability in the computer age. Three Supreme Court cases in particular—often called the “patent-eligibility
 trilogy”—reveal the evolution of its thinking about software patentability.

The Software Picture Blurs Even More

Taken together, the three rulings appeared for a time to arrive finally at a coherent definition of software patentability—namely, that although algorithms by themselves are abstract concepts and
 therefore unpatentable, software programs may be patented if they employ algorithms to produce a tangible and inventive or transformative result. This view was further augmented by a 1998 U.S. Court of Appeals for the Federal Circuit decision in
 *State Street Bank v. Signature Financial Group*, which extended software patentability to software-enabled methods of doing business so long as these produced a “useful, concrete, and tangible result.”

Finally, a “Pretty Clear” Message

While businesses and the courts were trying to figure out what the other tests for patentability might be, the Supreme Court provided further input with its March 2012 decision in
 *Mayo Collaborative Services v. Prometheus Laboratories*. Here, the court ruled that a process enabling physicians to correlate blood test results with medication levels to achieve the most appropriate dosages was ineligible for patent protection.”

Overcoming the Alice Paradox

By late 2015, however, it was clear that the
 *Alice*
 ruling was having an impact not only on patent law, but also on the innovation process itself within corporate America.

The Debate on Software Continues

The debate over the dividing line between patentable versus unpatentable computer software-related inventions continues—in corporate R&D labs and in the courts.

Evidence Shows Software Patents Don’t Hinder Innovation

Another argument made by critics of software patenting is that patents stifle innovation and foster monopolization in the software industry. Research, however, suggests that this is decidedly not the case.[footnote]
 If anything, in fact, the software industry has become even more innovative, more diversified, and more start-up friendly since patenting became common in the 1990s. You need only look at the huge proliferation of highly innovative start-ups in
 today’s social media and apps software fields to see just how erroneous the claim is that software patents stifle innovation. Or consider for a moment the fate of the Blackberry, once dominant but within the space of a couple of years superseded by
 more innovative competing smartphone makers.

 Robert Merges,
 “*Patents, Entry and Growth in The Software Industry*,”
 University of California at Berkeley School of Law, Berkeley, California, 2006. Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926204

When Gene-Related Inventions Are Patentable

A similar resistance is also developing toward gene-related patents. These began to be issued in significant numbers after the Supreme Court’s 1980 ruling in
 *Diamond v. Chakrabarty*, which upheld the first patent on a newly-created living organism—a bacterium for digesting crude oil in oil spills. Since then, patents have been granted for isolated gene sequences, but so far only on
 those with known functions and not on naturally- occurring genes in humans or other organisms. Patents have also been granted for gene sequences used in diagnostic testing, and on gene sequences that have been altered to make them more useful in a
 specific application.

Criteria for Patenting

Can I Patent That?

Before reading this section, please watch the overview video below covering what you can and cannot patent. You can’t patent an idea (like an idea for a better mousetrap), only an application of that idea in a practical invention. Novelty, utility, and non-obviousness—the holy trinity of patents.

Novelty

The requirement in Sections 101 and 102 of the Patent Act for novelty in an invention means that to qualify for a patent, a machine, manufacture, process, or composition of matter must not have been previously described or known. Specifically, it must not have been patented, described in an unpublished or published
 patent application, explained in a printed publication such as an article or technical paper, or publicly known prior to the filing date of the new patent application. In addition, it must not have been published, used in public, or offered for sale by the applicant or their colleagues more than 12 months prior to the filing of a patent application.

Prior Art Must Be Enabling

In the era of social media, the previously mentioned requirements could pose a novelty barrier if not handled properly.

Utility

As the
 *Star Trek*
 example suggests, the novelty issue can also touch on the question of utility—the second patentability criteria. Utility has a special meaning in patent law, which is simply that an invention must function and be of some benefit
 qualitatively—although no minimum quantum of benefit is necessary. The landscape of business is littered with companies that have invented not very useful or necessary products. But these may satisfy the requirement for utility if at least someone
 would find them useful.

Non-Obviousness

An invention may be new. It may also have utility. But to meet the criteria for a patent, it must also be non-obvious under Section 103 of the Patent Act.

Requirements

The requirement for non-obviousness may be illustrated with a fanciful example. If the number 4 were an invented product rather than a mathematical symbol, then even though the number 4 had never been invented before and
 was thus novel, it would still not be patentable. That’s because someone skilled in the art could have put 2 and 2 together to come up with it.

The One-Click Patent

Some people criticized the so-called “one-click” patent granted by the USPTO to Amazon.com in 1999 for Amazon’s system enabling customers to buy an item with a single click of the mouse—with the payment information
 needed to complete the purchase already having been entered by the user previously.

Overcoming Patent Hurdles

Taken together, the three patenting criteria—novelty, utility, and non-obviousness—function like the obstacles in an Olympic hurdles race. The utility hurdle is easiest to overcome. The novelty hurdle less so.
 But by far, the highest hurdle facing inventors is non-obviousness.

Other Types of Patents

Plant Patents

Plant patents were first created by the
 Patent Act of 1930, which had been proposed by Luther Burbank to protect new species of asexually reproduced plants, mostly
 flowers. These are different than the utility patents granted to bioengineered plants used in agriculture. The United States was the first country in the world to grant plant patents, and even today many countries continue to deny protection for
 plants. Indeed, even some signatories to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) administered by the World Trade Organization (WTO) reserve the right to deny patents for plants.

Design Patents

Design patents are granted to protect new, original, and non-obvious ornamental designs for articles of manufacture. Examples include Apple’s 2009 and 2010 patents—No. D593087
 and
 No. D618677—which covered among other things the unique, rounded-corner design of the iPhone, as well as its 2005 design patent
 No. D504889
 for the look and feel of the iPad. Design patents can be just as valuable as utility patents, as Apple discovered when a jury awarded it \$1 billion in damages against Samsung in August 2012, for the latter’s infringement of Apple’s utility and design
 patents. The case is currently on appeal.

The Patenting Process

Applying for a Patent

Much is at stake in the process of applying for a patent. Depending upon how you draft the claims and write the specification of your application, you could win or lose patent rights at any point in the examination
 process. In addition, any patent rights you win can be worth a considerable amount of money, and can be enforced by the U.S. federal courts.

Provisional vs. Nonprovisional Patent Application

Finally, the applicant must decide whether to file an abbreviated, “provisional” patent application or a complete, “nonprovisional” one. A provisional application consists only of the
 specification describing the invention for which a patent is sought, as well as any drawings that might be necessary to understand the invention. A provisional application is not subject to examination, and is viable for one year.

The Critical Importance of the Claims

When it comes to filing a full nonprovisional application, the most critical task of the inventor (and patent attorney) is to draft the claims. This is an art in and of itself, one that
 will determine the inventor’s rights and an infringer’s liability.

Reviewing the Patent Application

Once the patent application with all necessary forms is filed and all fees are paid, the
 patent examiner
 will review the patent application to determine if the invention meets the statutory requirements for patentability. The examiner will also conduct a search of patent and other databases to determine if the invention appears to be truly novel and
 non-obvious. Once a determination has been made, the patent examiner will send the applicant a document known as a
 first office action, in which the patent examiner approves, rejects, or requires additional information about the claims and/or other elements of the application.

Patent Enforcement

Introduction

The Right to Enforce Patents

Deciding Whether and How to Enforce a Patent

Patent Litigation

Who

First you decide whom to sue. Many options may exist. If the infringer is a corporation, you can sue it. But you can also sue its owners and/or officers if it is a closely held company or is dominated by a single shareholder or
 manager. If the infringer has subsidiaries, you must choose which of them to include as defendants. Recall that your patent gives you the right to exclude others from making, using, selling, offering for sale, or importing your invention in the
 territory the patent covers. (We will assume for simplicity that you own a U.S. patent; foreign patents can be obtained in other countries and enforcement of those foreign patents is subject to their local laws.) Any person or entity that violates
 one of these exclusive rights is a potential defendant.

What

Which patents (if you have more than one) and which claims of those patents you assert in a lawsuit is another important decision you must make. Twenty years ago, you could simply file a lawsuit against an alleged infringer,
 listing your patent(s) and little more. You could defer deciding which claims to assert against which allegedly infringing products or services until after you received information from the defendant(s) through discovery in the litigation. However,
 courts now routinely require that you provide details in the
 complaint
 you file, or shortly after, about which patent claims are asserted against which product or service, and also that you provide a “claim chart” that details those assertions precisely. Although it is possible to revise these assertions after receiving
 more information during the discovery process, your initial assertions remain in the court’s record and can come back to haunt you if they are not consistent with your revised assertions. Therefore, careful pre-filing investigation and analysis is
 crucial to a successful pursuit of the infringers.

Where

The selection of where to file is an important, perhaps determinative, decision. As we have noted, patent infringement cases seeking damages can only be filed in U.S. federal courts (as opposed to state courts). If your defendant
 is a private party, the proper location for the case (called “venue”) is the federal district court in the geographic location where the defendant is incorporated or resides, or where the claim arose.[footnote]

 If the alleged infringer is the federal government itself, or a government contractor, the proper venue is the Court of Federal Claims. 28 U.S.C. §1491 Another forum for enforcing a U.S. patent against imported goods exists at the U.S. International
 Trade Commission (ITC) in Washington, D.C. 19 U.S.C. §1330. The ITC has the power to investigate alleged infringement and bar goods found to infringe from entering the country. This can be a very effective tool against infringing imports, especially
 if all the sources of those imports are unknown. The ITC’s jurisdiction is “quasi in rem” so that the infringing goods themselves provide the basis for jurisdiction, allowing their adjudication and prohibition even if the source of the goods is
 unknown. Proceedings before the ITC are extremely expedited, usually taking 18 months or less, and can be very expensive.

When

The timing of filing suit is often dictated by when you discover the existence of the infringement and have gathered the required information for drafting a complaint and the necessary initial disclosures. But other considerations
 may be relevant also, such as the timing of industry trade shows, holiday sales pushes, or the financing activities of your opponent. Absent any other constraints or objectives, lawsuits should usually be filed as soon after the infringing activity
 is discovered as possible, given the need to investigate and prepare before filing a complaint.

How

Once you choose to file suit in federal court, the how is largely dictated by the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the loal rules of the chosen venue. However, one important decision remains-judge or jury.[footnote]
 Until the 1990s, almost all patent cases were tried to a judge because they were thought to be too complex for juries. but then some enterprising plaintiffs' lawyers decided to request that a jury decide their case, perhaps seeking to take advantage
 of the complexity of the cases and the belief that juries trust patents because they are issued by the federal government after examination by USPTO experts. That has led to the current reality, which is that almost all patent cases filed now request
 a jury trial. Interestingly, statistics show that this trend does not always benefit plaintiffs. Depending on the venue, plaintiffs only win 60 to 75 percent of the time, despite having the advantage of being able to pick what cases they file
 (presumably they self-select only the strongest cases) and where they file them (i.e., they can select what they think is the most favorable forum—often their own hometown).[footnote]
 Of course, the outcome of a particular case depends on a myriad of factors unique to that case. No party can be assured victory when a jury is involved.

 See Rules 38-39, Fed. R. Civ. P.

 PricewaterhouseCoopers, 2013 Patent Litigation Study, at 9;
 https://www.pwc.com/us/en/forensicservices/publications/assets/2012-patentlitigation-study.html.

Getting Started

Pretrial Procedures

Protective Order

Before information is shared between the parties, they usually agree on a protective order, which they will ask the court to enter, that specifies who has access to the confidential information produced during discovery in the litigation.[footnote]
 This is important to all parties, and even third parties that may be asked to produce information during discovery, because sensitive business, technical, and financial information is routinely requested by and produced to each party during the
 lawsuit. The protective order proscribes that the disclosure of confidential information during discovery is limited to lawyers involved in handling the case, outside experts retained by the lawyers to assist them, and court reporters (who record
 testimony during the case), videographers (who videotape deposition testimony, as is now common), and court personnel. It is also typical that certain employees of each party (usually in-house lawyers and/or business people directly involved in the
 oversight of the case) are also permitted to review certain materials, but not financial information of a competitor or future business plans, which are usually excluded from being disclosed to any party employees.

 See Rule 26(c), Fed. R. Civ. P.

Discovery

After the preliminary pretrial conference, discovery begins, which results in the exchange of documents, written responses, and witness testimony.[footnote]

 See Rules 26-37, Fed. R. Civ. P.

Amendments to the Pleadings

Once initial information is obtained via discovery, the parties may be permitted to amend or supplement their pleadings (i.e., the complaint, answer, counterclaim, etc.) to address information or issues uncovered during the initial discovery.[footnote]
 For example, the plaintiff may uncover information about other companies, products, or services involved in the infringement and seek to add them to the lawsuit. A defendant may uncover information about invalidity defenses not previously known to it
 and want to add those to its answer.

 See Rule 15, Fed. R. Civ. P.

Close of Discovery

This is the date by which all requests for documents, information, and depositions must be complete. It is usually interpreted as requiring that all responses to requests for production, interrogatories, and requests
 for admissions be answered by the end date set by the court, which means that the actual requests must be made sufficiently in advance of this date (typically 31 days—because responses are due to most discovery requests within 30 days) to allow the
 responses to be due before the cutoff date. Any depositions must also be completed by the date for the close of discovery (although the parties usually agree to finish select depositions after this date in order to accommodate scheduling problems).

Claim Construction Briefing and Hearing

In virtually every patent case, a dispute arises over the meaning of certain language used in the asserted claims of the patents at issue. These are called “claim construction” disputes, and must
 be resolved by the judge before trial. The parties are permitted to provide their competing arguments in briefs to the court, usually after discovery is completed, and make an oral argument on their respective positions to the court at a claim
 construction hearing. These hearings are often called
 Markman hearings, after the name of the case that established that the judge, and not the jury, must decide the proper meaning of disputed claim language.[footnote]

*Markman, et al. v. Westview Instruments, Inc.*,
 517 U.S. 370 (1996).

Summary Judgment Briefing and Hearing

Summary judgment
 is a procedure that obviates a trial where one of the parties can show that its opponent cannot win—as a matter of law.[footnote]
 That is, if one party can show that the evidence is so clear that no fact dispute exists (i.e., no reasonable fact finder, whether judge or jury, could decide otherwise) and that the law requires the case be decided in favor of the party moving for
 summary judgment, the court can decide the case without holding a trial. The judge must decide such motions based only on the applicable law (which the judge determines), the evidence (i.e., documents, interrogatory answers, admissions, and
 deposition testimony) developed during discovery, and the court’s claim construction decision, giving the benefit of any doubt about the facts to the nonmoving party. If the court finds that a fact relevant to the outcome is in dispute, summary
 judgment must be denied and a trial held to resolve that factual dispute.

 See Rule 56, Fed. R. Civ. P.

Final Pretrial Order and Conference

The final pretrial order is the document that sets forth the “ground rules” for the trial.[footnote]
 It typically identifies all the positions of each party, every issue in dispute in the case that must be resolved by order of the court or at trial, all the documents the parties may seek to introduce into evidence at the trial, and each witness that
 is expected to be called to testify, either live or via their deposition. The judge issues the order based on a draft prepared by the parties and once issued, it defines the issues that may be raised at the trial. If there is to be a jury trial, the
 order can rarely be modified after the final pretrial conference. If the trial is before the judge only (referred to as a “bench trial”), the judge may be more lenient in allowing modifications to the final pretrial order because he is the person
 deciding the case and can adjust more readily than a jury.

 See Rule 16(e), Fed. R. Civ. P.

Trial

Jury Selection

The trial begins with the selection of the jury. The jury is selected (or “picked”) from a group of prospective jurors called to court to serve in accordance with the laws and practices of the local jurisdiction.

Opening Statements

The next step is the opening statements by the opposing parties, starting with the plaintiff and followed by the defendant. If there are multiple plaintiffs or defendants, the judge will give equal time to each side
 and let the individual parties work out the allocation of time. The opening statement is intended to provide a road map for the jury about what the party intends to prove, and is expected to be devoid of argument. But lawyers rarely present an
 opening statement without some argument. The judge can intercede, and an opposing party may object, if a party crosses the “no argument” line too far.

The Evidence is Presented

The plaintiff then presents its case, calling witnesses and introducing exhibits that support its positions. Each opposing party has the opportunity to object to exhibits and testimony, and to cross-examine
 witnesses. The judge rules on all objections and generally oversees the proceedings to assure that the trial is conducted properly. After the plaintiff rests its case, the defendant presents its defense, again by introducing exhibits and offering
 testimony from witnesses. The trial concludes with the plaintiff calling rebuttal witnesses, who are limited to rebutting testimony from the defendant’s witnesses. Each side usually calls one or more experts to testify on the issues of infringement
 and validity (or invalidity), as well as on damages.

Closing Arguments

After the evidence has been presented, the parties make their closing arguments. Usually the plaintiff goes first, followed by the defendant. The plaintiff has the opportunity to reserve time for rebuttal if it
 chooses. In some jurisdictions, the defendant must go first and the plaintiff next. In this case, the plaintiff has the last word, and the defendant does not have any opportunity for rebuttal.

Deliberation and Verdict

In most patent cases, the jury must answer detailed questions listed in a verdict form, called a special verdict.[footnote]
 These questions typically list the accused product(s) and the asserted claim(s) and require the jury to decide infringement and validity for each claim and accused product separately. If appropriate, the jury may also be asked to decide what damages,
 if any, are to be awarded the plaintiff and whether any infringement they may have found to exist was willful or not.

 See Rule 49, Fed. R. Civ. P.

Post-Trial Procedures

Equitable Proceedings

Issues arise in most patent cases that must be decided by the judge and not the jury. Many of these are called “equitable” issues because they are left to the sound, equitable discretion of the court. The most
 common equitable issues are the defense of inequitable conduct and the affirmative claims of willfulness and exceptional case.

Inequitable Conduct

Misconduct by the patentee in dealing with the Patent and Trademark Office, through which the patentee or its attorney deceives or misleads the patent examiner in an effort to persuade the examiner to grant the
 patent, was historically called “fraud on the Patent Office,” but more recently has been renamed “inequitable conduct.” A defendant can raise this issue as a defense, which if proven results in the patent being unenforceable—that is, the patentee is
 unable to enforce the patent or recover any damages for its infringement. Many different types of inequitable conduct have been found to render patents unenforceable, from outright fabrications of alleged evidence of unexpected results in the
 development of the invention, to hiding relevant prior art showing prior solutions to the problem solved by the patent, to failing to tell the patent examiner that another patent examiner had rejected a related application.

Willfulness

If the jury (or judge, in a bench trial) finds that the asserted patent has been infringed, it is often asked to determine whether such infringement was “willful.”A finding of willful infringement allows the judge to award enhanced damages under 35 U.S.C. § 284, which provides in relevant part that the court may increase the damages award by up to three times the amount found. This is a potent consequence of a showing that a defendant’s infringement was willful.

Exceptional Case

Courts have discretion to award reasonable attorneys’ fees in patent infringement cases that are deemed “exceptional.”[footnote]
 The Federal Circuit has referred to this provision as a deterrent to bringing of clearly unwarranted suits on invalid or unenforceable patents.[footnote]

 35 U.S.C. § 285

*Mathis v. Spears*,
 857 F.2d 749, 754 (Fed. Cir. 1988).

Entry of Judgment

The winning party seeks entry of a judgment that grants it the relief to which it is entitled, based on the jury’s verdict and the rulings of the court. First, the judgment will declare who the winning party is. Then,
 it will set forth the relief or remedies to which the winning party is entitled. The relief may include damages, as awarded by the jury and supplemented by the court if there was a timing difference in the calculation of the damages by the jury and
 the date on which they are finally awarded. A winning patentee is also entitled to prejudgment interest on the damage award, calculated at the rate specified by law, to compensate for the time value of money lost due to the delay in obtaining
 damages. The judgment may also set forth the post judgment interest due, for any delay between the entry of the judgment and the payment of the award to the patentee by the losing parties.

Motion for Judgment as a Matter of Law

Called a “JMOL” motion, the premise of a motion for judgment as a matter of law is that the jury did not have a legally sufficient evidentiary basis for deciding the case as it did, and the court
 should intervene and decide the case in favor of the party moving for the JMOL. The moving party must explain in detail what legally required evidence is missing from the trial record. The opposing party (i.e., the party that won the jury verdict)
 then has the opportunity to identify in the trial record where the allegedly missing evidence is found, and the judge decides who is correct. The court must consider the evidence in the light most favorable to the nonmoving party. Thus, most JMOL
 motions fail. But the losing party always files such a motion because it is a chance to challenge the jury’s verdict and avoid the remedies the winning party is demanding.

Motion for a New Trial

JMOL motions are usually accompanied by a motion for a new trial, arguing that the jury’s verdict was against the manifest weight of the evidence or the jury’s verdict was grossly inadequate or excessive.[footnote]
 Other grounds also exist, such as newly discovered evidence that could not have reasonably been discovered earlier.

 See Rules 50 and 59, Fed. R. Civ. P.

Appeals

Litigation Alternatives

Mediation

Mediation is simply an exchange between adversaries overseen (i.e., “mediated”) by an individual with expertise and/ or training in helping parties reach agreement. Often, the mediator will require the parties to submit their
 positions and relevant documents in a pre-mediation brief. Usually, each pre-mediation brief is confidential and only seen by the mediator and the party submitting it (i.e., the opposing party does not see the other side’s mediation brief). The
 mediator will review the materials submitted and then set a date for the parties to meet with the mediator, usually in the mediator’s offices or a neutral location (such as a hotel conference room). Each party commits to bring to the mediation one or
 more people with the authority to settle, so that the people at the mediation can discuss the dispute and reach an agreement settling it without having to seek approval from others.

Arbitration

The principal difference between mediation and arbitration is decisiveness. Mediations result in settlements only if all parties agree to a resolution. In most arbitrations (so-called “binding arbitrations”), the parties
 agree to be bound by the decision of the arbitrator(s). There is a nonbinding version of arbitration, where the parties ask the arbitrator(s) to render a decision, but do not agree to be bound by it. In practice, these are actually mediations because
 they result in a settlement only if all parties agree to the result. Such nonbinding arbitrations are most often used when the parties have attempted to reach a mediated settlement but reach an impasse on one or more critical issues. They may then
 agree to submit those impasses to nonbinding arbitration, where one or more arbitrators (usually experts on the subject matter of the impasse issues) evaluate the facts, as presented by the parties, and render a decision that the parties can review
 to understand how an impartial third party looks at the issues. This often helps the parties craft a mediated settlement on their own.

Patent Trolls and Efforts to Thwart Them

Copyright Basics

Introduction

The Basics of Copyright

How to Obtain a Copyright

In America, the copyright system is administered by the U.S. Copyright Office, which is part of the Library of Congress and maintains a registry of copyrighted works. Interestingly, registration is not required to obtain a copyright. It is
 automatically granted to an author at the moment of creation—i.e., as soon as the work is expressed in a tangible form that allows it to be seen or copied, such as being written on paper or on a computer, or recorded as video or audio.
 Registration is only required if a copyright holder wants to initiate a copyright infringement suit in federal court.

Copyrights vs. Patents

Unlike the case with patents, the United States never developed an examination system for determining whether or not a creative work merits copyright protection. That’s because while the validity of an invention can be evaluated fairly objectively
 based on its utility, novelty, and non- obviousness, the merit of any cultural work is a far more subjective affair, as demonstrated by the frequency with which publishers reject novels that later go on to become literary classics.

The Rights of Authors and the Public Interest

When it came to copyright, however, the rights of authors were thought to conflict with those of the public to a far greater extent. “Democratic values emphasized equal and widespread access to learning and the importance of information flows for
 maintaining political freedom, whereas strong copyrights impinged on the fullest attainment of these objectives,” notes Bowdoin College historian Zorina Khan, author of
 *The Democratization of Invention: Patents and Copyright in American Economic Development*,
 which won the Alice Hanson Jones prize for outstanding work in economic history in 2005.[footnote]

B. Zorina Khan,
*The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790O1920*,
Cambridge University Press, 2005.

Early Copyright Systems

The Statute of Anne

In 1557, the Worshipful Company of Stationers was granted a royal privilege that enabled it to control the book trade for the next 150 years. Only in 1709 did a new copyright statute, the
 Statute of Anne, begin to erode the monopolistic power of the Stationers Company. It stipulated that a copyright could be obtained by anyone, and instead of a perpetual right, the term was limited to 14 years with the right to
 renew for one additional 14-year term. According to Professor John Feather of Loughborough University in Britain, the statute “wholly ignored the authors of books, and certainly was not intended to confer any additional rights on them.”[footnote]

 John Feather,
 *“Publishing, Piracy, and Politics: An Historical Study of Copyright in Britain*,”
 Mansell, New York, 1994, courtesy of Khan.

Copyright in America

The Pirates of Copyright

As late as 1835, 65 percent of science books, 92 percent of business texts, and 75 percent of law books published in the United States were written by Americans. But even then, a half century after independence,
 only a third of poetry and drama books published in America were written by Americans.[footnote]

 Op. cit., Khan.

Eligible Works

Can I Copyright That?

Before reading this section, please watch the overview video covering the basics of copyright law—eligible works, the distinction between ideas and their expression, the rights granted to copyright owners, and
 is copyright term—life plus 70 years.

Copyrighting Software

Why is software copyrightable? It’s because an appellate ruling in the 1983 case of
 *Apple v. Franklin* held that software was a kind of “literary work” and therefore eligible for copyright.

Ideas to Copyrightable Works

However, not everything is copyrightable—far from it. Just as patent law makes a sharp distinction between ideas and their application—i.e., you cannot patent an idea for a better mousetrap but you most
 certainly can patent a new, non-obvious, and useful apparatus that catches mice—so, too, does copyright law differentiate between ideas and their expression. You cannot copyright, for example, the idea of an epic space opera in which a mystical cadre
 of Jedi knights wielding laser swords battle galactic evil, but you can copyright the particular expression of that idea in the screenplay and motion picture
 *Star Wars*.

Rights and Term

Work for Hire

According to U.S. law, a
 work for hire
 is:

First-Sale Doctrine

It is important to note, however, that an author’s distribution rights (No. 3 above) are strictly limited by what is known as the first-sale doctrine, which terminates those distribution rights once he sells or
 distributes the work to someone else. For example, once the author of a copyrighted novel lets a publisher distribute copies of that novel to a bookstore, the author’s distribution rights to those copies are ended and the bookstore can do whatever
 it wants with them—sell them, rent them, give them away, or throw them in the dumpster. The bookstore owner cannot, however, make additional copies of the book because the first-sale doctrine does not limit a copyright owner’s
 *reproduction*
 right (the first right listed above).

First-Sale vs. Moral Rights

The first-sale doctrine does not affect an author’s moral rights, which under U.S. copyright law are limited only to certain works of visual art but under European copyright statutes are more broadly applied
 to other kinds of copyrightable work. Derived from the French concept of droit d’auteur, these give authors the power to protect the integrity of their work as well as the right of attribution.
 [footnote]
 Preserving the integrity of a work means that the author has the right to prevent its intentional distortion, mutilation, or modification by others. Authors also have the right to control the use of their name in relation to the work.

 Zemer, L. (2011). Moral Rights: Limited Edition. Boston University Law Review, 91(4), 1524. Retrieved from
 http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume91.

Infringement and Remedies

What If Someone Infringes Your Copyright?

Before reading this section, please watch the overview video below covering what you can do if your novel, blog post, photograph, or song is used by another without permission, and what the famous “Blurred Lines” copyright trial means to you.

Copyright Infringement in the Music Industry

Take Kanye West, for example. He was recently sued for sampling Sly Johnson’s song “Different Strokes” and using it in a new song called “The Joy” on Kanye’s and Jay-Z’s
 *Watch the Throne Album*.
 The case was settled out of court for an undisclosed amount.

Actual and Statutory Damages

As we see in the above case, infringing a copyrighted work can carry very significant penalties. The copyright owner has the right to recoup damages and lost profits from infringement. There are two kinds of
 damages—actual and statutory. The copyright owner may only receive one or the other form of damages.[footnote]

 Derived from 17 U.S.C., § 504 Retrieved from
 http://www.law.cornell.edu/uscode/text/17/504.

The Fair Use Defense

Is It Fair Use or Infringement?

Before reading this section, please watch the overview video below covering Fair Use is an enigma—indeed, no one even knows how many words of a copyrighted work one can legally copy as “fair use.” Here, at last, is everything you need to know about Fair Use.

Parody

One of the purposes for which copyrighted work may at times be freely used is parody. As a federal court ruled in one 1993 case:

Transformative or Theft?

A very interesting case involving fair use was decided by the U.S. Court of Appeals for the Second Circuit on April 25, 2013. It overturned a 2011 district court ruling that artist Richard Prince had acted
 illegally by using another artist’s photographs to create a series of collages and paintings. Such borrowing of another’s work is considered fair use only if it is “transformative” in some substantial way, and the district judge held that it was not because the collages did not comment on the original work explicitly. The federal circuit disagreed, holding that explicit references to the original work are not required so long as the required “transformation” is manifested by “an entirely different aesthetic” in the secondary work.

Fair Use for Public Good

The fair use clause also allows libraries and archives that are open to the public, or researchers in a specialized field, to use copyrighted materials for the purpose of preservation and security of the material or as a deposit for research. These libraries and archives can keep up to three copies of a copyrighted work, but a copyright notice must be included on each copy. Libraries and archives will not be held liable for “unsupervised use of reproducing equipment located on its premises” if there is a notice on the equipment that a copy may be subject to copyright law.[footnote]
 Any use of photocopied copyrighted materials must be specifically for private study, scholarship, or research, and any other use constitutes infringement. Photocopying copyrighted materials in a business setting is also infringing if used outside of
 research.

 17 U.S.C. § 108 Retrieved from
 http://www.law.cornell.edu/uscode/text/17/108.

Changes in Copyright Law

The Copyright Act of 1976

As noted earlier, the nineteenth century saw copyright expand to include a variety of new technologies, such as mechanical reproductions of musical compositions (player pianos and phonographs), photography, and
 eventually motion pictures. But those changes were small compared with the enormous advances of the twentieth century. The invention of radio, broadcast television, cable television, the video cassette recorder (VCR), personal computers, computer
 software and video games, digital audio recorders, compact discs, the digital video recorder (DVR), the Internet, iTunes media players, and now the streaming of music and movies all offered consumers new forms of creative content—and offered creators
 a new means of reproducing and distributing it. Each of these required an adjustment in U.S. copyright law.

The Computer Software Rental Act of 1990

The next major copyright issue arose with the emergence of personal computer software in the 1980s. Software companies and independent developers lobbied Congress to curtail the illegal copying
 of copyrighted software. As a result, the Computer Software Rental Act of 1990 was passed, prohibiting the unauthorized rental, lease, or lending of a computer program for commercial gain. Individuals, however, could still make personal copies for
 their own use, and libraries were permitted to lend software.[footnote]

 Library of Congress. (2003).
 *The Computer Software Rental Amendments Act of 1990: The Nonprofit Library Lending Exemption to the “Rental Right”*.
 Retrieved from
 http://www.copyright.gov/reports/software_ren.html

The Audio Home Recording Act of 1992

Hoping to prevent similar piracy in the emerging digital audio field, the Audio Home Recording Act of 1992 amended copyright law to require manufacturers and importers of digital audio recording
 devices to install technology to prevent the illegal copying of copyrighted music. It also mandated that royalties be paid to copyright owners for every device sold.

Viacom vs. YouTube

In 2007, however, Viacom filed suit against YouTube and its corporate parent Google for copyright infringement, claiming that the popular video-sharing site was committing “massive intentional copyright infringement”
 for not taking sufficient steps to prevent or remove some 160,000 unauthorized clips of Viacom’s entertainment programming posted by users. Google argued that the DMCA’s “safe harbor” provisions shielded them from liability for the actions of its
 users, and a district court judge ruled in favor of Google in 2010. But in April of 2012, a court of appeals vacated that decision and ruled that Viacom had presented enough evidence to warrant a trial. Viacom was seeking more than \$1
 *billion*
 in damages from YouTube, but in March of 2014, the parties quietly settled the seven-year-old case.

Extending Copyrights

The same year that saw passage of the DMCA also witnessed the passage of the
 Sonny Bono Copyright Term Extension Act, which added an additional 20 years to the term of copyright—extending it for most works to the life of the author plus 70 years after the author is deceased. Critics called it the “Mickey
 Mouse Protection Act” because it effectively extended the copyrights of many of the characters and content of the Walt Disney Company, which lobbied strongly for the bill. They argued that copyright law was historically designed to serve a public
 purpose and ought to defer to the public interest, as it has throughout U.S. history. As the
 *New York Times*
 put it:

E-Books

A more legitimate concern regarding DRM is that, whatever its perceived benefits for publishers and distributors, it is holding back innovation and consumer rights in digital content industries. This is especially evident in the
 burgeoning e-book market, which exploded from barely 10 percent of U.S. book sales in 2011 to 30 percent of all book sales by 2013. But a growing number of e-book publishers have now concluded that unless they meet consumer demands to ease these DRM
 anti-piracy provisions, further growth could be constrained.

Publishing DRM Free

In response to consumer complaints, some publishers have dispensed with DRM controls.
 *Harry Potter*
 author J. K. Rowling has launched her own website,
 *Pottermore.com*, to sell her e-books DRM free, enabling readers to enjoy them on any device they choose. Interestingly, the piracy of
 *Harry Potter*
 books has declined by 25 percent since DRM was dropped in 2012.

Recent Copyright Laws

The debate over DRM in e-books is likely to be center stage in the copyright debate in coming years. In the meantime, it’s worth mentioning three other copyright-related laws that were passed during the last decade or so.

New Technology Challenges to Copyright

Music Streaming

Rates are set by the federal Copyright Royalty Board (CRB), a three-judge panel, but currently they apply a different rate for streaming music than they do for satellite and cable music. Sirius pays about 8 percent of
 its revenue to record companies and artists. Pandora, however, claims it must pay a rate per song streamed that amounts to 44 percent of revenue. So it pushed for the introduction in September 2012 of the Internet Radio Fairness Act, which would make
 the rates for Internet radio companies the same as those for satellite and cable radio.

TV Streaming

Another new technology challenge to copyright involved television broadcasters and an upstart television service called Aereo that at one point rented dime-sized antennas for \$8 per month that act like long-range rabbit
 ears to people with digital video recorders, enabling them to watch and record over-the-air network channels like NBC or Fox without paying the much-larger fees for cable or satellite service.

Alternative Forms of Copyright

Creative Commons

The development of the
 Creative Commons
 represents a voluntary private sector alternative to traditional copyright that coordinates the creation and consumption of content among a wide variety of individuals and institutions—all without a hint of government intervention. In doing so,
 Creative Commons captures a whole section of the market for which broad dissemination of content and not financial gain is key, which is something that could not be done as effectively by either traditional copyright or the public domain.

Open Access

Another alternative copyright approach is called open access, founded by the Budapest Open Access Initiative in 2002. Open access encourages scholars to provide the fruits of their research online without expectation of payment.[footnote]
 The aim here is to open up scholarly research far more widely than is currently the case, but open access adherents face a key challenge in the fact that many scholarly articles are published in expensive journals as “works made for hire.” This means
 that the rights belong to the journals, not the authors. But open access supporters are working with publishers to try to overcome this limitation and create more opportunities for scholarly research to be made more widely accessible at lower cost.

 Chan, L., Cuplinskas, D., Eisen, M., Friend, F., Genova, Y., Guedon, J., Hagemann, M., Harnad, S., Johnson R., Kupryte, R., Manna, M., Rev I., Segbert, M., Souza, S., Suber, P., & Velterop J. (2002, February 24).
 *Budapest Open Access Initiative*.
 Retrieved from
 http://www.soros.org/openaccess/read.

Copyright in a Changing World

Trademark Basics

Introduction

Core Concepts

Trademarks as Branding

Consider, for example, the role that Nike’s “Swoosh” logo plays in its \$106 billion shoe, equipment, and apparel business. In 1971, Nike founder Phil Knight paid graphic design student Carolyn Davidson a mere \$35
 to design the “Swoosh” logo for the fledgling new company. According to the Portland
 *Oregonian*
 newspaper, when Knight saw her design, he reportedly told her, “I don’t love it, but maybe it will grow on me.” Nike attorneys nonetheless registered the logo with the U.S. Patent and Trademark Office (USPTO) on June 18, 1971.[footnote]

 Allen Brettman,
 “*Creator of Nike’s Famed Swoosh Remembers Its Conception 40 Years Later*,”
 the Oregonian, June 15, 2011.

Trademarks vs. Other Intellectual Property Rights

Trademarks share with other intellectual property rights the power to encourage and reward creative enterprise. Trademarks also share with patent rights and copyrights the public policy
 goal of marshaling the benefits of creative endeavor—in this case, the distinctive branding of one’s products and services from those of others—to the public good. They do this by protecting the consumer from deception and encouraging sellers to
 provide quality products.

Trademarks Mean Business

Finally, trademarks exist only in conjunction with commercial activity. An inventor may receive a patent for a new invention and never employ or “practice” that invention in a business or research endeavor.
 Similarly, an author can receive a copyright for an original literary or artistic work and yet never publish, display, or sell it. A trademark, however, cannot exist by itself, apart from commercial activity.

Early Trademark Systems

Bronze Age Origins

Scholars of antiquity give Early Bronze Age potters the credit for creating the world’s first trademarks by imprinting their works with distinctive markings. We assume that these marks were meant to indicate the
 origin of a particular work or the identity of its craftsman, but the historical record is not conclusive on this point. But an examination of the potters’ seals found on Corinthian artifacts dating to 2000 BC suggests this is a reasonable
 supposition. Trade and commerce between the tribes and early civilizations of that era were expanding rapidly, and in order to be mutually beneficial, trade requires a certain amount of trust in the provenance and quality of goods. These early
 potters’ trademarks seemed to have served that purpose by distinguishing the goods of quality craftsmen from those of unknown or uncertain sources.

Early Trademark Cases

Scholars had until only recently attributed the first reported trademark case in Anglo-American law to be
 *Southern v. How*,
 which was decided in 1618. This despite the fact that the case involved not a trademark but the sale of counterfeit jewels.[footnote]
 Its connection to trademark came from a reference by the presiding judge to an earlier, unnamed, and unreported case in 1584 involving a suit brought by a cloth maker against another cloth maker who had used his mark. That earlier clothier case, only
 recently discovered and now known as
 *Sanforth’s Case*,
 is now held to be the earliest reported trademark case in Anglo- American law. It establishes beyond a doubt that even 250 years before the Industrial Revolution, trademark infringement was viewed as a tort of deceit and a violation of the laws
 against unfair competition.[footnote]

 McKenna, M.
 *The Normative Foundations of Trademark Law*
 (December 30, 2010). Notre Dame Law Review, Vol. 82, No. 5, p. 1839, 2007. Retrieved from SSRN:
 http://ssrn.com/abstract=889162.

 Keith M. Stolte,
 *How Early Did Anglo-American Trademark Law Begin? An Answer to Schechter’s Conundrum*,
 Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 8, Issue 2, 1997.

U.S. Trademark Law

The Commerce Clause and the Lanham Act of 1946

Two years later, Congress instead acted under the

Commerce Clause

 of the Constitution to pass the Trade Mark Act of 1881. This first national trademark law, however, only regulated trademarks used in commerce with other nations and with Indian tribes. It wasn’t until 1905 that Congress passed another trademark
 statute regulating the use of marks within the United States.

Requirements for a U.S. Trademark

The requirement that a trademark must be actively used or intended to be used in commercial activity in order to be protected by law has been a fundamental feature of U.S. trademark law since its
 inception. The Lanham Act specifically requires applicants to submit “a verified statement that the mark is in use in commerce, specifying the date of the applicant’s first use of the mark in commerce and those goods or services specified in the
 notice of allowance on or in connection with which the mark is used in commerce.”[footnote]
 A trademark is presumed to have been abandoned when its owner ceases to use it for three or more years, after which anyone else can register and use the mark.

 15 U.S.C. §1051 Retrieved from
 http://www.law.cornell.edu/uscode/text/15/1051.

The Four Types of Trademarks

Can I Trademark That?

Before reading this section, please watch the overview video below covering the four types of trademarks and what they are used for, the subject matter of trademarks, and why trademarks are important—not just to their
 owners, but even more so, to the general public.

Trademarks

Trademarks identify
 *products*—i.e., physical goods and commodities—that are either manufactured, produced, grown, or that exist naturally. A trademark is a word, name, symbol, or device—or combination of these—used to identify and distinguish the
 source of that product. Examples of trademarks include the Nike “Swoosh” symbol, the arched “M” for McDonalds, and the apple symbol with a small curved bite taken out of it for Apple Computer.

Service Marks

Service marks are exactly the same in principle as trademarks except that these words, names, symbols, or devices identify and distinguish the source of a
 *service*. Examples of service marks include the sleek silver greyhound dog on Greyhound buses, and United Parcel Service’s brown shield emblazoned with the bold yellow letters “UPS.”

Certification Marks

A certification mark is any word, phrase, symbol, or design—or a combination of any of these—owned by one party that certifies the goods and services of others when they meet certain standards or requirements.[footnote]
 A certification mark identifies either the nature of a product or service—for example, that it meets the quality standards needed to receive the “Good Housekeeping Seal of Approval”—or the
 origin
 of products or services, as in the certification mark “Washington State” given to apples grown in that state.

 United States Patent and Trademark Office. (2012, March 09).
 *What Is a Collective Membership Mark*?.
 Retrieved from
 http://www.uspto.gov/faq/trademarks.jsp#_Toc275426676

Collective Marks

Collective marks come in one of two varieties: collective trademarks and service marks, and collective membership marks. A collective trade or service mark is any word, phrase, symbol, or design that is owned by a
 cooperative, association, collective group, or organization and is used by its members to indicate the source of goods or services.[footnote]
 An example of a collective trademark is the “Girl Scouts” mark seen on cookies every February, or the designation “CPA” to identify the services provided by a Certified Public Accountant.

 United States Patent and Trademark Office. (2012, March 09). Frequently Asked Questions About Trademarks. Retrieved from
 http://www.uspto.gov/faq/trademarks.jsp

The Subject Matter of Trademarks

Words, Phrases, and Names

There is little confusion about what is meant by a trademarkable
 *word*, *phrase*,
 or
 *name*.
 The only point to remember here is that words, names, and phrases that are simply descriptive of the goods or services with which they are associated do not necessarily qualify for registration as a trademark.[footnote]
 They must be distinctive and indicate the origin of a product or service. What is meant by distinctive—and how distinctive they must be—will be discussed in the next section.

 United States Patent and Trademark Office. (2012, August 09).
 *Trademark Manual of Examining Procedure*
 § 1202. Retrieved from
 http://tess2.uspto.gov/bin80/gate.exe?f=doc&state=nk9n3c.2.14

Symbols and Devices

Symbols
 and
 devices
 are where things start to get interesting in trademark law. The language of the Lanham Act does not specify what is meant by a “symbol” or a “device” that can be trademarked. The U.S. Supreme Court took careful note of that fact, ruling in 1995 that,
 “Since human beings might use as a ‘symbol’ or ‘device’ almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive.”[footnote]

*Qualitex Co. v. Jacobson Products Co.*,
 514 U.S. 159, 7 (1995) Retrieved from:
 http://www.todaysengineer.org/2003/Feb/files/514U.S.159.pdf

Designs and Trade Dress

A
 *design*,
 like a logo, can also be trademarked, provided it distinguishes the origin of the product or service from any other source or producer. In these trademarks, the logo must be unique and consist of more than simple stylization.

The Spectrum of Distinctiveness

Fanciful Marks

Fanciful marks
 are invented words, symbols, or devices that have no relation to the good or service being sold and have no meaning other than to distinctly identify the product or service and distinguish it in the minds of consumers from those of any other vendor.
 “Xerox” is a good example of a fanciful mark, as are “Google” and “Kodak.” Fanciful marks are considered the strongest type of mark and are prima facie registrable with the USPTO.

Arbitrary Marks

Arbitrary marks
 are real words in common usage that have no descriptive relationship to the product or service being sold. Examples of arbitrary marks include “Apple” (for the computer company), “Oracle” (for the software company), and “Galaxy” (for the mobile
 phone). Arbitrary marks are also unreservedly eligible for trademark registration.

Suggestive Marks

Suggestive marks
 are marks that suggest or imply a quality or characteristic of the goods and services being sold. They require imagination, insight, or perception on the part of the consumer as to the nature of the article.[footnote]
 Examples include “iPad” for the tablet computer and “Coppertone” for the sunscreen lotion.

 Derived from:
 http://www.bitlaw.com/trademark/degrees.html

Descriptive Marks

A
 descriptive mark
 explicitly describes the purpose, nature, or an attribute of a product or service and is, therefore, not eligible for trademark registration unless a secondary meaning or association has been developed in the public’s mind through usage.[footnote]
 Ineligible descriptive marks include “Lightweight” and “Faster.” However, if a descriptive mark takes on a secondary meaning in the public mind—“Sharp” televisions, for example, or “Windows” for windowing software—then it can be eligible for
 trademark registration.

 United States Patent and Trademark Office. (2011, January).
 *Trademark Manual of Examining Procedure (TMEP) - 8th Edition*.
 Retrieved from
 http://tess2.uspto.gov/tmdb/tmep/1200.htm

Generic Marks

The last and least distinctive category of marks are
 generic marks
 that are simply the common name for the goods and services being sold. Examples of generic marks might be “Aspirin” for the analgesic, or the use of the word “Baskets” for a basket store without any accompanying logo or other design element to
 distinguish from a merely generic description of the items sold. A generic mark is never eligible for registration no matter how much evidence a mark owner offers that it has acquired a secondary meaning through advertising and marketing.

Bars to Trademark

The Prior Use Bar

No one can register a trademark if it has been used by other parties prior to its use by the applicant. Indeed, if the applicant uses such a mark, he or she may be liable for trademark infringement.[footnote]
 The only exception to the prior use bar is when the mark has been used in an entirely different market or field of business, as in the trademark “Progressive” granted to two companies, one a backpack manufacturer and the other an auto insurance
 company.

 15 U.S.C. §1115.

The Functionality Bar

To be trademarked, no word, symbol, design, device, scent, or sound may purely or primarily serve a functional purpose. Nor can it be trademarked if its absence in or on the product inflates its cost or reduces its quality.[footnote]

*Inwood Laboratories Inc. v. Ives Laboratories, Inc.*, 456 U.S. 844 (1982) Retrieved from
 http://supreme.justia.com/cases/federal/us/456/844/case.html

Subject Matter Bars

In addition to prior use and functionality, certain kinds of subject matter are generally not eligible for trademark registration. These are surnames, geographic marks, and ornamental, immoral, or offensive marks.[footnote]

 United States Patent and Trademark Office.(2012, March 09).
 *Frequently Asked Questions About Trademarks*.
 Retrieved from
 http://www.uspto.gov/faq/trademarks.jsp

Establishing Trademark Protection

Establishing Your Trademark Protection

Before reading this section, please watch the overview video below covering the “spectrum of distinctiveness” and other fancy-sounding legal terms and what they really mean in the real world of commerce and consumerism.

Trademark Infringement

Trademark Infringement and Remedies

Before reading this section, please watch the overview video below covering similarity, market confusion, vicarious infringement, and getting back what’s yours.

Trademark Remedies

Fair Use of Trademarks

Trade Secret Basics

Introduction

Trade Secret Protection

What Is a Trade Secret?

Trade secret
 law is a source of protection for intellectual property that serves as an alternative to patent or trademark law. Whereas patent and trademark law require that the intellectual property to be protected be publicly “disclosed” (for example, through a
 patent application), trade secret law requires precisely the opposite—that is, that the intellectual property to be protected
 *not*
 be publicly disclosed. The subject matter of a trade secret may be virtually any information that is of value as a result of not being generally known.

Advantages and Disadvantages of Trade Secret Law

There are both advantages and disadvantages to protecting intellectual property through the use of trade secret law. The decision of whether to use trade secret law as opposed to other legal means of protecting knowledge or information is governed
 primarily by the nature of the intellectual property to be protected.

Advantages

One of the main advantages of trade secret law is that it provides indefinite future protection. Unlike the 20-year time limit that underlies the protection granted to a patent holder, there is no definite time limit placed on the protection granted
 to a trade secret owner. This indefinite future protection granted to trade secrets is appealing, assuming that the intellectual property to be protected is likely to remain generally unknown well into the future. For example, if the intellectual
 property to be protected is a method of manufacturing a product that can be determined from examining the product, then the best way to protect the new method of manufacture might be through a patent. On the other hand, if the new method of
 manufacturing the product cannot be determined from examination of the product, then the best way to protect the intellectual property might be to treat it as a trade secret.

Disadvantages

Although there is no definite expiration of the protection granted to trade secrets, the protection prohibits only the disclosure or use of the trade secret by one to whom the secret was disclosed in confidence. Unlike patent law, trade secret law
 does not offer any affirmative protection against the use of the same intellectual property that is independently derived or reverse engineered by a competitor. Consequently, if the intellectual property to be protected is a new method of
 manufacturing a product, and if that method of manufacture is ascertainable from an examination of the product, then the best form of protection for the intellectual property is most likely that offered by patent law.

The Foundations of Trade Secrets Law

Uniform Trade Secrets Act

In an effort to harmonize and standardize trade secret law in the United States, the Uniform Law Commission[footnote]
 published the
 Uniform Trade Secrets Act (UTSA)
 in 1979. The UTSA sought to create a uniform trade secret law regime from state to state. However, the UTSA itself was not binding upon states at publication. In order for the UTSA to be successful, the states themselves needed to adopt and enact the
 model UTSA statute created by the commission. In 1980, Minnesota became the first state to adopt the UTSA. Since 1980, most states have adopted the UTSA, many with the 1985 amendments to the act. New York and Massachusetts remain the last states that
 have yet to adopt the UTSA. Although the UTSA harmonized various state law approaches to trade secrets, each state enacts the UTSA with any modifications or customizations the state legislature desires to make. Thus, although most states have adopted
 the UTSA, each state may have a slightly different adaptation of the UTSA.

 The Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws, is a nonpartisan, nonprofit organization that promotes the uniformity of law from state to state. The Commission publishes “model laws” that
 states are then able to adopt and enact.

Trade Secret Misappropriation

Although this section seems to indicate that the UTSA broadly replaces all state laws dealing with
 misappropriation
 of trade secrets, there is debate as to what constitutes “conflicting tort, restitutionary, and other law.” Additionally, what it means for a common law remedy to be “based on” misappropriation of a trade secret is often contested. Owners seeking to
 recover damages for misappropriation generally argue that only common law causes of action that have elements identical to the UTSA are preempted, while defendants argue that any cause of action used to protect trade secrets is preempted because it
 is duplicative of the UTSA. Despite this potential conflict between the UTSA and state common law, this chapter focuses on the main body of trade secret law as governed by the UTSA.

Elements of a Trade Secret

The Value of Secrets

For information or knowledge in any of the above forms to be considered a trade secret, it must derive independent economic value because it is not generally known to, nor readily ascertainable by, other persons who can profit from its disclosure or
 use. Some examples of information courts have found to be trade secrets include computer software, sales information, customer information, and manufacturing formulas. However, merely because information is not known to the public does not
 necessarily make the information a trade secret. For example, information that is not generally known by the public but is known by different manufacturers in the same industry likely does not qualify as a trade secret.[footnote]

 See e.g. *Ruckelshaus v. Monsanto Co.*, 467 U.S. 986, 1002 (1984); *Speedry Chemical Products, Inc. v. Carter’s Ink Co.*, 306 F.2d 328, 331 (2d Cir 1962).

Protecting Ideas as Trade Secrets

In addition to information, certain ideas may constitute trade secrets. Although ideas were not protected as trade secrets under common law, the UTSA provides protection for certain novel and concrete ideas. For example, remedies for misappropriation
 of an idea may be permitted based on the existence of a confidential relationship. The elements that must be proven under this common theory are: (1) a novel or original idea; (2) reduced to concrete form; (3) disclosed to the defendant in a
 confidential relationship, i.e., one in which it would be implied that use would not be made without compensation; and, (4) used by the defendant.

The Secrecy Requirement

Under Company Lock and Key

Because the UTSA may be varied by any state, the level of secrecy required varies from state to state. For example, a version of the UTSA adopted by some states contains a provision that reduces the burden of secrecy placed on the owner of a trade
 secret. Specifically, this version of the UTSA provides that the existence of a trade secret is not negated merely because an employee or other person has acquired the trade secret without express or specific notice that it is a trade secret if,
 under all the circumstances, the employee or other person knows or has reason to know that the owner intends or expects the secrecy of the type of information comprising the trade secret to be maintained. Although this provision tips the scales in
 favor of trade secret protection, it should not be viewed as removing the affirmative obligation the UTSA places on one seeking protection of trade secrets. In both states that have and have not modified the UTSA in this manner, the measures taken to
 secure the information are key to finding whether the information will be protected as a trade secret.

Protection Plans

Memorializing a trade secret protection plan in writing helps to ensure that the business or person is indeed taking reasonable measures to protect the trade secret. The person or company seeking to protect its intellectual property through the use
 of trade secret law should maintain a written statement of its trade secret security policy. This statement can be written in the form of a policy manual and helps prevent situations in which “unwritten rules” are followed or rules are enforced in a
 lax manner and then eventually ignored. Moreover, should litigation become necessary, it is easier to persuade a court that the security procedures were indeed a primary concern if they are enumerated in writing. However, if security measures are
 merely written, but not followed, it may be difficult to prove reasonable efforts to maintain secrecy.[footnote]

 See *Lexis-Nexis v. Beer*, 41 F. Supp.2d 950 (D. Minn. 1999).

Strategies for Protecting Trade Secrets

Given the ease with which documents can be reproduced, trade secrets that are reduced to writing should be treated with special care. Documents containing trade secrets should be clearly labeled with shorthand instructions that are consistent with
 the written trade secret protection plan. For example, documents may be marked “secret” or “confidential.”[footnote]
 Access to these documents should be monitored and all persons allowed access to the documents should be informed of the meaning of the trade secret designation on the document and the relevant provisions of the written trade secret protection plan.
 This attention to detail should also be followed in arranging for proper destruction of the documents.[footnote]

 See *Gemisys Corp. v. Phoenix American, Inc.*, 186 F.R.D. 551, 558-62 (N.D. Cal. 1999).

*Electro-Craft Corp. v. Controlled Motion, Inc.*, 332 N.W.2d 890 (Minn. 1983) (no technical documents were marked “confidential”).

Misappropriation of Trade Secrets

Misappropriation through Improper Means

The first type of misappropriation under the UTSA is acquisition of a trade secret through improper means. Specifically, the UTSA prohibits the “acquisition of a trade secret of another, by a person who knows or has reason to know the trade secret
 was acquired by improper means.”[footnote]
 “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.[footnote]
 In short, the first type of misappropriation is the mere possession of a trade secret that has been acquired through theft or the breach of a duty to maintain the secrecy of the trade secret.

 See Unif. Trade Secrets Act § 1(2)(i), U.L.A (1985).

 See Unif. Trade Secrets Act § 1(1), U.L.A (1985).

Misappropriation through Disclosure

The second type of misappropriation under the UTSA is the disclosure or use of someone else’s trade secret without their express or implied consent. Although the statutory definition is somewhat complicated, the UTSA essentially prohibits the
 disclosure or use of a trade secret that is possessed as a result of theft, breach of a duty to maintain its secrecy, or an accident or mistake on the part of the trade secret owner.[footnote]

 See Unif. Trade Secrets Act §§ 2(2)(ii)(A)-(C), U.L.A (1985).

UTSA’s Definition of Misappropriation

The UTSA’s definition of misappropriation is rather broad. The protection granted to trade secret owners under the UTSA is further expanded by prohibiting not only the actual, but also the threatened, misappropriation of trade secrets. The
 distinction between these two types of misappropriation is basically one of timing. The UTSA prohibits the actual disclosure of trade secrets and provides remedies for those whose trade secrets have already been misappropriated. A more difficult
 question arises, however, with respect to a trade secret owner’s rights prior to the actual misappropriation of trade secrets. To address a trade secret owner’s legitimate concerns that misappropriation may occur in the future, the UTSA prohibits
 “threatened” misappropriation.

In the Courtroom

However, in most situations, direct evidence concerning the likelihood of misappropriation does not exist. In such cases, a trade secret owner can present circumstantial evidence to demonstrate that the unauthorized use or disclosure of trade secrets
 is imminently threatened. Circumstantial evidence demonstrating that imminent misappropriation is likely to occur consists of two types: (1) evidence demonstrating the intent of a party to elicit the wrongful disclosure of the trade secret, and (2)
 evidence demonstrating that the wrongful disclosure or use of a trade secret is inevitable regardless of any party’s intentions.

Act Fast

A trade secret owner who suspects that either actual or threatened misappropriation has occurred or is likely to occur must act promptly to enforce their legal rights. Although the statute of limitations under the UTSA is
 three years, courts have the power to deny the relief requested by trade secret owners even when an action has been initiated within the statute of limitations period, if the action has not been initiated reasonably promptly. The

 UTSA assumes that a trade secret owner who suspects misappropriation will move with reasonable alacrity to protect intellectual property, and recognizes that if such action is not taken, then third parties may materially change their
 positions in a good-faith belief that no trade secret rights have been violated. Under such circumstances, a court may find that the trade secret owner has been estopped from exercising, or waived their right to seek protection under the UTSA. These
 principles essentially allow the court to find that even though the information that a party seeks to protect meets the requirements of a trade secret, equity demands that the information not be protected as a trade secret because protecting it would
 harm a third party.[footnote]

 See *Watermark Solid Surface, Inc. v. Sta-Care, Inc.*, 2009 WL 723199 (W.D. Wis. 2009) (discussing waiver of trade secret protection); Christianson v. Colt Industries Operating Corp., 766 F.Supp. 670 (C.D. Ill. 1991) (outlining common equitable defenses
 in trade secrets cases).

Remedies Available for the Misappropriation of Trade Secrets

Injunctive Relief

As discussed above, under the UTSA, injunctive relief is available to enjoin actual, as well as threatened, misappropriation. Injunctive relief allows the owner of a trade secret to obtain a court order prohibiting the actual or threatened
 misappropriation of a trade secret. The ability to enjoin threatened misappropriation is very important because it enables the owner of the trade secret to prevent public disclosure of the trade secret.[footnote]
 Injunctive relief may take many forms. The scope of an injunction may vary from a broad prohibition on any use of material found to be a trade secret, to a more limited prohibition on the scope of an employee’s work with a new employer.[footnote]
 Both the scope and subject matter of an injunction vary depending upon the specific facts of the case and the nature of the trade secret in question. The UTSA provides that an injunction shall terminate once the trade secret ceases to exist, but may
 be continued for a reasonable period of time to extinguish any commercial advantage that otherwise would be derived from the misappropriation. This is especially important where, at the time of the action, the information or knowledge is no longer a
 trade secret. In such a case, the court may still award the owner injunctive relief that is narrowly crafted to deprive the defendant of the benefit of time saved by improper use of the owner’s trade secret.[footnote]

*Standard Brands, Inc. v. Zumpe*, 264 F. Supp. 254, 269 (E.D. La. 1967).

 See *3M v. Pribyl*, 259 F.3d 587, 598 (7th Cir 2001) (upholding broad injunction on use of material in employee handbook, as overly specific injunctions may invite evasion).

 See *Cherne Indus., Inc. v. Grounds & Associates*, 278 N.W.2d 81 (Minn. 1979).

Damages Awarded

Damages are often awarded in addition to an injunction and are not an exclusive remedy.[footnote]
 For example, in

*Seagate Tech., LLC v. Western Digital Corp.*
, 834 N.W.2d 555 (Minn. App. 2013), the Minnesota Court of Appeals affirmed a judgment of \$630 million in favor of the plaintiffs against the
 defendants stemming from a trade secret misappropriation dispute. Under the UTSA, damages are measured by the actual loss caused by the misappropriation as well as any resulting unjust enrichment of the misappropriator. Where the amount of actual
 loss or unjust enrichment cannot be accurately calculated, the UTSA provides that damages may also be measured by the imposition of a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret. Exemplary or
 punitive damages may be awarded where the court finds that the misappropriation was willful and malicious.[footnote]

 For example, in

*Mattel, Inc. v. MGA Entm’t, Inc.*
, 801 F. Supp. 2d 950 (C.D. Cal 2011), Mattel was found to have engaged in a prolonged practice of encouraging employees to
 use false pretenses to acquire competitive information from the defendant. As a result of this conduct, the jury awarded, and the court affirmed a verdict of \$85 million dollars in exemplary damages. A punitive or exemplary award may not exceed twice
 the amount of the damage award.[footnote]
 However, some states have modified this cap on punitive damages, and allow for punitive damages greater than two times the amount of actual damages.[footnote]

 See e.g., *Mikes Train House, Inc. v. Lionel, L.L.C.*, 472 F.3d 398, 413-15 (6th Cir. 2006).

 See, e.g., *Aries Information Sys., Inc. v. Pacific Management Sys. Corp.*, 366 N.W.2d 366 (Minn. Ct. App. 1985).

 See Unif. Trade Secrets Act § 3(b), U.L.A (1985).

*Reingold v. Swiftships, Inc.*, 210 F.3d 320, 323 (5th Cir. 2000).

Glossary

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5