The founding fathers in 1776 provided enumerated protection for copyrights and patents in the United States in Article I, § 8, cl. 8. For the Patriots who wrote and signed the Constitution printing and earning a living through their inventions were important and for some the mainstays of their livelihood, the enumerated protection for copyrights and patents in the United States is derived from the short clause in Article I, § 8, cl. 8 stating:

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. ¹

Robert Goss received a Masters of Law in Intellectual Property & Information Law from the University of Houston Law Center. A Masters of Law is a graduate law degree received after earning a Juris Doctor degree. A Masters of Law degree is also shown by the abbreviation of the Latin for Legum Magister as a LL.M.

This specialized legal training allows the Law Office of Robert B. Goss to handle the following practice area:

• Copyrights
• Trademarks
• Trade Secrets
• Patents (in 2009)

The Law Office of Robert B. Goss protects your intellectual property rights. Specifically the Firm can file your Copyright, Trademark, help setup Trade Secret protection of your business and employee agreements and in 2009 draft Patent applications (Prosecution).

COPYRIGHTS
Copyright laws have evolved over the years to include protection for numerous "writings." Congress has expanded "writings" to include such things as architectural designs, music and even digital transmissions. Today Copyright law is codified in 17 U.S.C. § 101, et seq., also referred to as the 1976 Copyright Act. The previous copyright acts, however, are applicable in some instances.

The Copyright Act of 1976 states what subject matter may receive copyright protection in section 102. ² So what can be copyrighted? Any original work of authorship, fixed in any tangible medium of expression. Wow! What does this mean? This sentence essentially means you can get a copyright for a work you created. If the work is original and you fixed it (this means wrote it down, recorded it, built it, etc. so that it is retrievable or repeatable) you may qualify for copyright protection. The types of subjects that may be repeatable are: literary works; Musical works, including any accompanying words; dramatic works, including any accompanying music; Pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual work; motion pictures and other audiovisual work; sound recording; and architectural works. ³

The Copyright Act also states there are things, which cannot be copyrighted. To give you an idea of non-copyrighted subjects matters the Copyright Act lists ideas, procedure, process, system, method of operation, concept, principle, or discovery. ⁴

Copyright owners have the right to protect their works from infringement (when someone uses the work without a license or a right to use the work). The Law Office of Robert B. Goss protects your intellectual property rights.

TRADEMARK
Unlike Copyrights and Patents, Trademarks do not derive their origins from the U.S. Constitution. Today the Lanham Trademark Act (§§1-74), which is also 15 U.S.C. §§ 1051-1141nn serves to protect the public from the likelihood of confusion between similar marks.

• Types of Marks:
  • Trademark
    1. Word, name symbol, device or combination (example = Levi's Jeans, red tag)
    2. Used to identify and distinguish goods of one party from those of another
    3. Indicate source of goods even if unknown
  • Service Mark
    1. Identifies services rather than goods
       • Examples = laundry, restaurant, insurance and entertainment business
    2. Service must be sufficiently separate from product
       • Test = whether service normally expected and routinely rendered to sell goods
       • If so, no separate service mark registration
       • Example = department store showing customer how to use vacuum
  • Trade Name
    • Name used in business (Levi Strauss & Co.)
  • Certification Mark
    1. Certifies goods/services of another have certain characteristics
       • Examples = regional origin, quality (UL rating), accuracy, content (movie ratings)
    2. Lanham Act restrictions
       1. Owner may not apply to its own goods
       2. Owner must control use of mark
       3. Owner must be objective and not discriminate
    3. Failure to abide by Lanham Act restrictions results in cancellation
  • Collective Mark
    1. Used by members of an organization
       • Examples = agricultural co-op, AAA
    2. May be similar to certification mark if organization imposes standards on members
  • Trade Dress
    1. Product packing, labeling and design
    2. Cannot be functional = Alternative design must be available that can
       1. Perform the same function, and (otherwise de facto functional)
          • Not Protected = ribbed neck on oil bottles = de facto functional
       2. Not shut out competition (otherwise de jure functional)
          • Protected = shape of Hershey's kiss, shape of Pizza Hut
• Protection:
  • Choosing TM
    1. Don't copy
    2. Don't use generic term
    3. Don't be confusing
  • Commercial use protects TM

Jurisdiction over Trademark Suits

Federal:

• The owner of a federally registered mark may sue for alleged infringement in Federal Court under §1114.

State:

• Unregistered mark — who only has State common law rights — may gain access to federal courts for protection of the mark in three different ways:
  1. §1125(a) — forbids use of a false designation of origin.
  2. federal question and add a state law trademark claim under the doctrine of supplemental jurisdiction (28 U.S.C. § 1367)
  3. diversity jurisdiction, when filing a State law trademark claim.

• Any trademark owner may sue in state court, use statutory and / or common-law trademark laws.
• There is concurrent state and federal jurisdiction in federal trademark cases.

The Law Office of Robert B. Goss protects your intellectual property right by registering trademarks for their owners and advising the TM owners comply with the Lanham Act.

TRADE SECRETS
The subject of a trade secret must be secret, and must not be public knowledge or of a general knowledge in the trade or business. This necessary element of secrecy is not lost, however, if the holder of the trade secret reveals the trade secret to another in confidence, and under an implied obligation not to use or disclose it.

• A Trade Secret cannot be public knowledge or of a general knowledge in the trade or business.

State trade secret protection is not preempted by operation of federal patent laws. (Kewanee Oil).

Consider in Trade Secret
The property in a secret process is the power to make use of it to the exclusion of the world. If the world knows the trade secret process, then the property disappears.

The value of a trade secret is that it remains secret (Coca-Cola formula for instance). An inventor faces the decision to protect his invention as a Trade Secret or seek a Patent protection. Patents offer the right to exclude others from using the invention, but the secret must be disclosed to all in the patent application.

Means to protect a trade secret include

Nondisclosure contracts

• contracts, restraining employee from working for competitor after termination of employment, are valid if limited as to time and place;
• Nondisclosure contracts may be valid even if unlimited to the extent that they are drawn so as to prevent disclosure of actual trade secrets earned in confidence as result of employment.

• Negative covenants unlimited as to time or place are valid as a basis for equitable relief only as they protect trade secrets acquired during a confidential employment.

The property in a secret process is the power to make use of it to the exclusion of the world. If the world know so process, then the property disappears. There is no betrayal of confidence when no secret is imparted.

Covenant not to compete, valid if limited to:

1. time;
2. place; or
3. unlimited if trade secret involved.

These protections for Trade Secrets and the means to protect your secret may require expert legal advice. The Law Office of Robert B. Goss is here to help you protect your trade secret.

PATENTS
The second of the enumerated protected intellectual properties from the United States Constitution is the patent. ⁵ Patents should be registered with the use of a legal specialist, patent attorneys or patent agents. Patent attorneys and agents have passed the rigorous Patent Bar. Admission to the Patent Bar, which is licensed by the USPTO, licenses Patent attorneys and agents to expertly submit patents and handle all aspects of the law related to your patent. This expertise is needed for the complicated and specialized patent applications and infringements.

Patents are governed by 35 U.S.C. §§ 1-376, and administered by the U.S. Patent and Trademark Office (USPTO). For a quick reference to what may be patented the following is a short list:

• Subject matter(§ 101)
  • Process
  • Machine
  • manufacture
  • or composition of matter
  • or any new and useful improvement thereof
• Non-patentable subject matter
  • Abstract ideas
  • Principles of nature (laws of nature)
  • natural phenomena
  • Literary or artistic creations
  • Printed matter

The Law Office of Robert B. Goss is not currently accepting patent cases.

¹ U.S. Const. Art. I, S 8, cl. 8.
² 17 U.S.C. § 102.
³ Id. at § 102(a).
⁴ Id. at § 102(b).
⁵ U.S. Const. Art. I, § 8, cl. 8.