The Internet has spawned a proliferation of related patents many of which extended e-commerce processes. The efforts of Chinese hackers to access Google’s source code actually resulted in an intervention from the American Government and a withdrawal of Google from China. It is necessary to be aware of the repercussions of infringing others’ patent over processes and paying for the right to use them rather than face charges of infringement and pay penalties and legal costs at a later date. A case in point is the settlement won by Convolve against Dell ($1.5 million), Western Digital ($2.5 million) and Hitachi ($1.4 million) for its patented process to control vibrations and noises in hard drives.
There is some protection from patent infringement charges in not allowing any process to be patented if it was in public use or available sale for one year before the patent application date.
Since the American law protects the rights of the ‘first-to-invent’ against the rights of the ‘first-to-file’, one may file as an ‘early inventor; for business methods – which were not considered patentable earlier; if they can prove:
As these remain secret until issued, the substantial investments in using the technology made by competitors and others stand at risk. There is some protection in having patent applications being published, 18 months after they are filed.
Trademarks & Service Marks:
Protection is available for words, names, symbols or devices used in commerce for goods and services. Promotional slogans, jingles, product shapes, characters used by a commercial entity and distinguish its goods or services become its trademarks. Deliberate creation of confusion between an established brand with a new one qualifies under infringement. By registering a trademark, its owner obtains the right to use it across the US.
All states in America protect even unregistered trademarks in the geographical area of its use. Some exceptions are:
Yet-to-be-patented as well as non-patentable information gets protected under state law as a trade secret. Trade secrets contain information like customer lists, designs, compilations, techniques, programs, formulae, methods, and processes which are commercially valuable to their owner and are protected as secrets. The owner of a secret has the right to protect misappropriation of such a secret. But someone else arrives at the same information through independent research, the owner of a trade secret cannot press any claim. ClearOne was awarded million-dollar damages when WideBand and Biamp misappropriated its conferencing technology and Ebay ended up paying undisclosed settlement as well as $30 million damages to MercExchange for using its proprietary code for the ‘Buy it now’ function on its site.
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