International Intellectual Property
1. Territoriality: for copyright and patents the presumption is against it.
Trademark law, generally applies globally.
2. Lanham Act balancing test 9th circuit: trademark infringment
1. Effect on american foreign commerce 2. Effect must be great
enough to present cognizable injury to plaintiffs under the fed statute
3. The interests of and links to american foreign commerce must be
sufficiently strong in relation to those of other nations to justify an
assertion of extraterritorial authority
3. How to get national treamtent: Berne Convention (1886), supp 125. 2
ways to get protection - either you're a national of that country or get
protection through the first publication in that country
4. Rome convention: US is not apart of it
5. if you are apart of WTO then: you abide by TRIPS
6. national vs. international exhaustion: National - for c in the US to
exhaust, the first sale would have to happen in the US
Ï Would exhaust US c
Ï Works well with price discrimination, first sale of iphone in china does
not exhaust us copyright, if iphones are sold cheaper in china, a 3rd
party could not sell them in the US
International - first sale can happen anywhere in the world for US
copyright to exhaust
US has int. exhaustion for all
7. Moral rights: 4 rights of moral rights: 1. attritribution/paternity -
author is always allowed to use their name 2. Right of integrity 3.
Right of divulgation 4. Right of withdrawal/right to repent - right for
author to retake his work in exchange for indemnity
Moral rights are not optional, Berne, Art 6bis
US is not in compliance with 6bis - we give list of things US does that
,is sort of in compliance with 6bis, but not really
8. first to file: first to file gets the patent, since 2013 the US follows this
o US First to File System
§ Will require a formal application and a provisional application
(other countries require informal application and have low
requirements for that application)
,§ Allows patent applicant to file provisional patent application - gives
application 1-year domestic priority even though the application isn't
complete.
· Diminishes concerns about rushed applications and lack of ability
to explore commercial viability of the invention
· Inventors can finalize and perfect their application within the year
§ 1-year grace period after disclosure of the invention - this allows
inventors to disclose their applications and explore the possibilities
of success within a year
· 1 year is generous compared to other countries
§ Before AIA we excluded a huge chunk of prior art, anything that
wasn't printed or in patent application outside the US. If it was outside
US, it had to be written down, so that excluded a lot of prior art that
would have otherwise been included. We got rid of this after AIA.
§ US inventors need to be careful because rushing to disclose
inventions inside the US could sacrifice their rights to patent abroad
§ US was in compliance with international treaties with either system.
As long as US complies with TRIPs and Paris, there is no requirement
to adopt either system.
§ Patent derivation - to resolve disputes about who actual inventor
was, replaced patent interference
o Advantages and Disadvantages
§ Small inventors might be at disadvantage because they have limited
resources
§ May result in premature and sketchy disclosures because of rush to
file applica- tions
§ Simplicity - eliminates the complexity, length, and expense of
interference pro- ceedings
§ Definite, readily determinable, involves legally fixed date instead of
hard to prove conception date
§ Encourages early disclosure to the public
9. Trips art 28: making, using, offering to sell, importing (offering to
sell are all apart of patent rights
10.EU patent exhaustion: EU wide national exhaustion
11.Trips art 27: patents - patentable subject matter ’ country x can't
exclude phar- ma because that's why we signed trips agreement, all
countries protect pharma.
12.Art 31 TRIPS: compulsory license:
, § Will only come into play if you can't make the exception under art 30
§ A. individual merits = case by case basis. Because it's a patent it
would only be for one drug.
· A blanket compulsory licensing scheme would violate this
§ B. "reasonable" can be interpreted in many different ways (see 558,
right before
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