Академический Документы
Профессиональный Документы
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Kirby v. Sega
Pesina v. Midway Manufacturing Co.
- Infringement possible by using character that is inextricably
intertwined in publics mind
- False endorsement
Neal v. EA
- False
o
o
o
o
copyrighted work as a whole; and (4) the effect of the use upon
the potential market for or value of the copyrighted work.
Sony v. Connectix
- Fair use defense - Issues:
o Nature of the copyrighted work
Functional elements are not copyrightable.
o Amount and substantiality of portion used
Reverse engineered, but final product contained no
infringing material
o Purpose and character of use
Numerous intermediate copies? Thats what fair use is
trying to promote so we dont have wasteful products.
o Effect of the use upon the potential market
Sony wanted to maintain monopoly copyright law doesnt
give a fuck about that.
- Also, tarnishment
o Need to show that your products name was tarnished.
Substantial evidence required.
- Other pointers:
o Patent
To be eligible for patent, convention has to be 1) new, 2)
useful, 3) not obvious.
o Claim construction
Reviewing of the claim
o What is patent infringement?
Literal
Circumstantial (doctrine of equivalence) substantially
same
o Defenses
Prior art
Inadequate disclosure lack of description of the invention
Inequitable conduct you failed to claim your patent
Nintendo v. Magnavox (pg. 310)
- Inequitable conduct: failure to disclose (clear and convincing
standard)
o Prior art/info that is material
o Applicant knew of the prior art/info
o Intent to mislead
- Rebut with
o Prior art/info is not material
o If material, show applicant did not know
Magnavox v. Activision
- Patent infringement: Two-fold inquiry
o Interpretation of claims
o Determine if infringed
Literal
Doctrine of equivalents
- Claims
o Means-plus-function: means-plus-function claim is a claim
including a technical feature expressed in functional terms of the
type "means for converting a digital electric signal into an analog
electric signal"
o Structural:
Gussin v. Nintendo
- An action brought by the inventor of a electronic painting systems
against Nintendo claiming that Mario Paint infringed his patent; he
was unsuccessful and did not provide sufficient facts to support his
claim.
- Prosecution history estoppel
DEFINITIONS
Literal infringement
- Each and every element recited in a claim has identical
correspondence in the allegedly infringing device or process
Doctrine of equivalents
- Some other element of the accused device or process 1) performs
substantially the same function, 2) in substantially the same way, 3) to
achieve substantially the same result.
Prosecution history estoppel.
- Also known as file-wrapper estoppel, is a term used in United States
patent law to indicate that a person who has filed a patent application,
and then makes narrowing amendments to the application to
accommodate the patent law, may be precluded from invoking the
doctrine of equivalents to broaden the scope of their claims to cover
subject matter ceded by the amendments.
Fantasy Sports v. Sportsline.com
ProCD v. Zeidenberg
- Shrink warp case
Hill v. Gateway
- Additional terms included in a box shipped by the seller DO become
part of the contract between the parties, even if the purchaser is
unaware of the additional terms and the purchasers acceptance of the
terms is by not returning the item purchased.
Klocek v. Gateway
- Under 2-207, seller needs to prove sufficient evidence of notice and
assent to the terms at the time of purchase in order for a shrink wrap
license to be binding.
o AT THE TIME OF PURCHASE. Not later.
- 2-207 can be applicable if only one form is exchanged between the
parties.
Davidson & Associates v. Internet Gateway
- The Blizzard case
- K issue
o Preemption by Copyright? Copyright Act only does that when
other laws interfere with one of the exclusive rights. So no.
o Existence of K? You clicked through I Agree/Agree. Clickwrap
o Unconsciounability
Procedurally, it is unconsciounable because end-users have
no choice but to click through I Agree. (Oppression and
surprise)
Substantively, its not. Focus on the terms.
- Fair use defense
- Copyright misuse defense
o Copyright violates the public policy embodied in the grant of
copyright.
Ex) extremely restrictive, cant terminate, etc.
Micro Star v. Formgen
- Derivative works: Protected just as the original
o Recast, transformed, adapted
o In a "concrete or permanent form, and must contain a substantial
amount of protected material from the previous work
Allen v. Academic Games League of America
- Public performance
o Copyright holder has the right to perform publicly