Fine Print: Intellectual Property for Engineers

Transcript

1. Fine Print Intellectual Property for Engineers Noah Kantrowitz – DevOpsDays 2017
2. Noah Kantrowitz @kantrn – coderanger coderanger.net
3. Disclaimer One I am not an attorney and this is not legal advice. This is for entertainment purposes only. Consult a patent attorney for specific advice. No really don't do anything in a court of law based on the advice of a guy on a stage. No joke.
4. Disclaimer Two This is mostly US-centric. Intellectual property laws and customs vary around the world. Again, consult an attorney.
6. What is IP?
7. What is IP?
8. What is IP?
9. History Time
10. Statute of Monopolies “… shall not extend to any letters patents (b) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c) to the true and first inventor (d) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use …”
11. Statute of Anne “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted …”
12. US Law Image © Tony Webster Constitution Statutes Regulations
13. Moral Rights?
14. Image © GitHub
15. Talk To A Lawyer
16. The Four Branches
17. © ™
18. © ™
19. © ™
20. © ™
21. © ™
22. Copyrights
26. Yoink
28. Exclusive Rights ‣ “… reproduce the copyrighted work in copies …” ‣ “… prepare derivative works …” ‣ “… distribute copies to the public …”
30. Subject Matter “… original works of authorship fixed in any tangible medium of expression …”
31. Not Allowed ‣ Facts and names ‣ Ideas ‣ Government works ‣ Un-creative works ‣ "Useful articles"?
32. Term ‣ Before 1923 – None ‣ 1923 to 1978 – 95 years ‣ After 1978 – Lifetime plus 70 years ‣ Work for hire – 95 or 120 years 17 USC § 302-303
33. Term Image © The Walt Disney Company
34. All Rights Reserved
35. Work For Hire 17 USC § 201
36. Licenses Fair Use
37. Oracle v Google
38. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc.
39. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc.
40. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc.
41. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc.
42. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc. Finish Him
43. Claims Jury Judge Appeal Jury Images © Marta Pucciarelli and Oracle America Inc. ¯\_ (ツ )_ /¯
44. Hard
45. Patents
46. Inventions
47. Inventions ~Ideas~
48. Right to Exclude “… whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 USC § 271
49. Useful Novel Non-Obvious 35 USC § 101
50. ✓ Useful Novel Non-Obvious 35 USC § 102
51. ✓ Useful ✓ Novel Non-Obvious 35 USC § 103
52. ✓ Useful ✓ Novel ✓ Non-Obvious
53. Inventions Patentable ‣ Process ‣ Machine ‣ Manufacture ‣ Composition of matter 35 USC § 101
54. Not Patentable ‣ Ideas ‣ Laws of Nature ‣ Math ‣ Naturally occurring things
55. Enabling Disclosure “… enable any person skilled in the art to which it pertains … to make and use the same, and shall set forth the best mode contemplated …” 35 USC § 112
56. PHOSITA
57. Term 20 years 35 USC § 154
58. Alice v CLS Bank
59. 5,970,479 6,912,510 7,149,720 7,725,375
61. “Thus, if a patent’s recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on . . . a computer,’ that addition cannot impart patent eligibility.” “Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’”
62. 0 5,000 10,000 15,000 20,000 Q 2 2014 Q 3 2014 Q 4 2014 Q 1 2015 Q 2 2015 Q 3 2015 Q 4 2015 Q 1 2016 Q 2 2016 Q 3 2016 Q 4 2016 Data by Juristat
64. Trademarks
65. Brands
66. WIKIPEDIA®
67. MYWIKIPEDIA
68. MYWIKIPEDIA Infringement
69. Valid Marks ‣ Words ‣ Phrases ‣ Logos ‣ … ‣ Sounds, shapes, scents 15 USC § 1052
70. “A person who has a bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce may request registration of its trademark on the principal register …” 15 USC § 1051
71. ™ v ® 15 USC § 1057, 1111
72. Term ∞ 15 USC § 1059
73. Polaroid Factors ‣ Strength ‣ Similarity ‣ Proximity ‣ Gap
 ‣ Intent ‣ Relatedness ‣ Customers ‣ Actual confusion
74. Dilution 15 USC § 1125
75. Trade Secrets
76. ‣ “… all forms and types of financial, business, scientific, technical, economic, or engineering information …” ‣ “… the owner thereof has taken reasonable measures to keep such information secret …” ‣ “… the information derives independent economic value, actual or potential, from not being generally known …” 18 USC § 1839
78. Licenses
79. Why?
81. Open Source
82. Copyright (c) <year> <copyright holders> Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
83. The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
84. MIT v BSD
85. MIT v BSD Patents
86. My Patents Additional Grant of Patent Rights Version 2 "Software" means the React software distributed by Facebook, Inc. Facebook, Inc. ("Facebook") hereby grants to each recipient of the Software ("you") a perpetual, worldwide, royalty-free, non-exclusive, irrevocable (subject to the termination provision below) license under any Necessary Claims, to make, have made, use, sell, offer to sell, import, and otherwise transfer the Software. For avoidance of doubt, no license is granted under Facebook's rights in any patent claims that are infringed by (i) modifications to the Software made by you or any third party or (ii) the Software in combination with any software or other technology.
87. Your Patents Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work …
88. Apache 2.0
89. Copyleft
90. GPL
93. LGPL
94. “A derivative work must incorporate a protected work in some concrete or permanent ‘form.’ ” Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 780 F. Supp. 1283 - Dist. Court, ND California 1991
96. Creative Commons ‣ Attribution – CC-BY ‣ Derivative Works – NonDerivatives & ShareAlike ‣ Commercial Use – NonCommercial ‣ CC0
97. Choose? Copyleft? Yes No GPLv3 Apache 2.0 That's It
98. Choose? Copyleft? Yes No GPLv3 Apache 2.0 That's It
99. Contributor License Agreements
100. ‣ “You represent that each of Your Submissions is entirely Your original work.” ‣ “You grant Microsoft, and those who receive the Submission directly or indirectly from Microsoft, a perpetual, worldwide, non-exclusive, royalty- free, irrevocable license …” ‣ “You represent that You are legally entitled to grant the above licenses.”
101. Developer Certificate of Origin
102. ¯\_(ツ)_/¯
103. Bonus Topics
104. DMCA
105. Safe Harbor “A service provider shall not be liable for monetary relief … for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider … does not have actual knowledge that the material or an activity using the material on the system or network is infringing;” 17 USC § 512
107. Copyright Agent
108. Takedowns
109. I'm Still Not An Attorney
110. DRM “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;” 17 USC § 1201
111. ‣DeCSS ‣PS3 Key ‣ElcomSoft ‣NetVCR ‣…
113. Ownership
114. First Sale Doctrine
116. Vernor v Autodesk
117. Caveat Emptor
118. Fair Use
119. “But I'm not making any money from this!”
120. Nominative Use
121. Apple® Keynote®
122. Four Factors ‣Purpose ‣Nature ‣Amount ‣Effect
123. Four Factors ‣Purpose ‣Nature ‣Amount ‣Effect
124. Four Factors ‣Purpose ‣Nature ‣Amount ‣Effect
125. Four Factors ‣Purpose ‣Nature ‣Amount ‣Effect
126. Four Factors ‣Purpose ‣Nature ‣Amount ‣Effect
127. Probably Not
128. Wrap Up
129. ‣ Copyrights – Protect creative works ‣ Patents – Protect new inventions ‣ Trademarks – Protect brand recognition ‣ Trade Secrets – Protect commercial secrets ‣ Licenses – Give limited use of exclusive rights
130. Resources
131. ‣ Cornell Legal Information Institute ‣ Intellectual Property and Open Source: A Practical Guide to Protecting Code by Van Lindberg ‣ USPTO.gov ‣ Google Patents ‣ This Week In Law
132. Thank You
133. coderanger.net/talks Thank You
134. Questions? Noah Kantrowitz coderanger.net @kantrn