McHale & Slavin, P.A. - Intellectual Property Attorneys

Common Intellectual Property Terms

The following terms will provide with useful information about Intellectual Property...

     abstract of judgment
n. a written summary of a judgment which states how much money the losing party owes to the person who won the lawsuit (judgment creditor), the rate of interest to be paid on the judgment amount, court costs, and any specific orders that the losing party (judgment debtor) must obey, which abstract is acknowledged and stamped so that it can be recorded at the county recorder. The purpose of an abstract of judgment is to create a public record and create a lien or claim if necessary on any real estate owned or later acquired by the loser located in the county in which the abstract of judgment is recorded. If the loser does not pay the judgment voluntarily then the winner can force a sheriff's sale of any property to collect. There are several problems: a) to find the county where the loser owns real estate; b) the probability that there are secured loans, tax liens and/or other judgments that come ahead of the judgment lien; c) the possibility that the loser/debtor may go bankrupt and avoid paying the debt.

     act
1) n. in general, any action by a person. 2) n. a statutory plan passed by Congress or any legislature which is a "bill" until enacted and becomes law. 3) v. for a court to make a decision and rule on a motion or petition, as in "the court will act on your motion for a new trial."

     adjudication
n. the act of giving a judicial ruling such as a judgment or decree. The term is used particularly in bankruptcy proceedings, in which the order declaring a debtor bankrupt is called an adjudication.

     admiralty
n. concerning activities which occur at sea, including on small boats and ships in navigable bays. Admiralty law (maritime law) includes accidents and injuries at sea, maritime contracts and commerce, alleged violations of rules of the sea over shipping lanes and rights-of-way, and mutiny and other crimes on shipboard. Jurisdiction over all these matters rests in the federal courts, which do not use juries in admiralty cases. There are other special rules in processing maritime cases, which are often handled by admiralty law specialists. Lawyers appearing in admiralty cases are called "proctors."

     adverse possession
n. a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exists. This can arise when a rancher fences in a parcel contending he was to get title from some prior owner, and then grazes cattle on the property for many years without objection by the title holder. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period (varies by state) are evidence of adverse possession but cannot be used by a land grabber with no claim to title other than possession.

     agent
n. a person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is an agent and what is his/her authority are often difficult and crucial factual issues.

     attorney
n. 1) an agent or someone authorized to act for another. 2) a person who has been qualified by a state or federal court to provide legal services, including appearing in court. Each state has a bar examination which is a qualifying test to practice law. The examinations vary in difficulty, but cannot be taken until the applicant is a graduate of an accredited law school (with a three-year minimum course of study) or in seven states has fulfilled extensive other training. Passage of the bar examination qualifies the attorney for that state only and for the federal courts located in that state (and other federal courts upon request). Some states will accept attorneys from other states, but many will not grant this "reciprocity" and require at least a basic test for out-of-state attorneys. Attorneys from other states may practice in a limited way, but cannot appear (except on a single case with court permission) in state courts (but in federal courts). Graduation from law school does not make one an attorney. There are also patent attorneys who can practice in federal patent courts only and have both legal and engineering training. Most patent attorneys today are regular attorneys who specialize.

     bifurcate
v. the order or ruling of a judge that one issue in a case can be tried to a conclusion or a judgment given on one phase of the case without trying all aspects of the matter. A typical example is when the judge will grant a divorce judgment without hearing evidence or making a ruling on such issues as division of marital property, child custody or spousal support (alimony). Thus the parties can be free of each other promptly while still fighting over other issues at their leisure. In a negligence case when the question of responsibility (liability) is clearly in doubt or rests on some legal technicality, the court may bifurcate the issues and hear evidence on the defendant's liability and decide that issue before going ahead with a trial on the amount of damages. If the court rules there is no liability, then the amount of damages is meaningless and further trial is necessary.

     civil procedure
n. the complex and often confusing body of rules and regulations set out in both state (usually Code of Civil Procedure) and federal (Federal Code of Procedure) laws which establish the format under which civil lawsuits are filed, pursued and tried. Civil procedure refers only to form and procedure, and not to the substantive law which gives people the right to sue or defend a lawsuit.

     due process of law
n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides "No person shall…be deprived of life, liberty, or property, without due process of law," and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.

     ejusdem generis (eh-youse-dem generous)
v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

     exemplary damages
n. often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton or grossly reckless. Examples of acts warranting exemplary damages: publishing that someone had committed murders when the publisher knew it was not true but hated the person; an ex-husband trashes his former wife's auto and threatens further property damage; a stockbroker buys and sells a widow's stocks to generate commissions resulting in her losing all her capital (money). These damages are awarded both as a punishment and to set a public example. They reward the plaintiff for the horrible nature of what she/he went through or suffered. Although often requested, exemplary damages are seldom awarded. There have been major awards in egregious (remarkable or outstanding) cases, such as fraud schemes, sexual harassment or other intentional and vicious actions even when the provable actual damages were not extensive.

     fair use
n. the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright. With the growing use of copy machines, teachers and businesses copy articles, pages of texts, charts and excerpts for classroom use, advice to employees or to assist in research without violating the copyright. For example, Professor Elmer Smedley makes 100 copies of a photograph from Time magazine of starving Somalians to illustrate to his students the deprivations in Africa (which is fair use), but then Smedley publishes a book Africa on the Brink, and uses the photograph in a chapter on starvation (not fair use), and is responsible to the photographer for a royalty.

     fiduciary relationship
n. where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.

     good faith
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.

     indicia
n. (in-dish-yah) from Latin for "signs," circumstances which tend to show or indicate that something is probable. It is used in the form of "indicia of title," or "indicia of partnership," particularly when the "signs" are items like letters, certificates or other things that one would not have unless the facts were as the possessor claimed.

     interlocutory
adj. provisional and not intended to be final. This usually refers to court orders which are temporary.

     JD
n. short for Juris Doctor, identifying the holder as having re-ceived that law degree.

     limitation of actions
n. the period of time in which a person has to file with the clerk of the court or appropriate agency what he/she believes is a valid lawsuit or claim. The period varies greatly depending on what type of case is involved, whether the suit is against the government, whether it is by a minor, and most importantly, in what state or federal jurisdiction the right to sue arose. This is more commonly called the statute of limitations, which are specific periods for various claims in each state.

     Monopoly
Exclusive control of a particular market by the power to control prices and/or exclude competition.
natural law n. 1) standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will. The biblical ten commandments, such as "thou shall not kill," are often included in those principles. Natural law assumes that all people believe in the same Judeo-Christian God and thus share an understanding of natural law premises. 2) the body of laws derived from nature and reason, embodied in the Declaration of Independence assertion that "all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of happiness." 3) the opposite of "positive law," which is created by mankind through the state.

     offshore corporation
n. a corporation chartered under the laws of a country other than the United States. Some countries (particularly in the Caribbean) are popular nations of incorporation since they have little corporate regulation or taxes and only moderate management fees. Professional trustees and nominal officials in the country of incorporation perform routine contacts with the local government but take no active part in management. The reasons for the use of offshore corporations are best known to the incorporators, but may include avoidance of taxes, ease of international operations, freedom from state regulation and placement of funds in accounts out of the country.

     patent
1) adj. obvious. Used in such expressions as a "patent defect" in an appliance. 2) n. an exclusive right to the benefits of an invention or improvement granted by the U.S. Patent Office, for a specific period of time, on the basis that it is novel (not previously known or described in a publication), "non-obvious" (a form which anyone in the field of expertise could identify), and useful. There are three types of patents: a) "utility patent" which includes a process, a machine (mechanism with moving parts), manufactured products, and compounds or mixtures (such as chemical formulas); b) "design patent" which is a new, original and ornamental design for a manufactured article; and c) "plant patent" which is a new variety of a cultivated asexually reproduced plant. Example: Secretary of Agriculture and later Vice President Henry A. Wallace developed hybrid corn which made him rich for life. A utility or plant patent lasts 17 years and a design patent lasts 14 years, but all types require payment of "maintenance" fees payable beginning 3 1/2 years after the issuance to keep them up. Patent law specialists can make a search of patents to determine if the proposed invention is truly unique, and if apparently so, can file an application, including detailed drawing and specifications. While awaiting issuance of the patent, products or designs should be marked "patent pending" or "pat. pending." Upon receiving the patent the product can be marked with the word "patent" and the number designated by the Patent Office. The rights can be transferred provided the assignment is signed and notarized to create a record or "licensed" for use. Manufacture of a product upon which there is an existing patent is "patent infringement" which can result in a lawsuit against the infringer with substantial damages granted. 3) n. a nearly obsolete expression for a grant of public land by the government to an individual.

     patent ambiguity
n. an obvious inconsistency in the language of a written document.

     patent defect
n. an obvious flaw in a product or a document (such as leaving out the property description in a deed).

     patent infringement
n. the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract, license or waiver. The infringing party will be liable to the owner of the patent for all profits made from the use of the invention, as well as any harm which can be shown by the inventor, whether the infringement was intentional or not.

     patent pending
n. often abbreviated to "pat. pend." or "pat. pending," the term is printed on a product to inform others that an application for a patent has been filed with the U.S. Patent Office, but the patent has not yet been granted.

     quasi in rem
adj. referring to a legal action which is primarily based on property rights, but includes personal rights as well.

     save harmless
v. 1) also called hold harmless, to indemnify (protect) another from harm or cost. 2) to agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee. Example: the seller of a business agrees to "save harmless" the buyer from any unknown debts of the business.

     trade name
n. a name of a business or one of its products which, by use of the name and public reputation, identifies the product as that of the business. A trade name belongs to the first business to use it, and the identification and reputation give it value and the right to protect the trade name against its use by others. Example: Sheaffer's is clearly identified as a fountain pen manufactured by the Sheaffer Company, and no one else can produce pens with that name. However, a motorcycle with the name Sheaffer would not be an infringement since the product is different.

     trade secret
n. a process, method, plan, formula or other information unique to a manufacturer, which gives it an advantage over competitors. Therefore the trade secret has value and may be protected by a court-ordered injunction against use or revelation of trade secrets by an employee, former employee or someone who comes into possession of the trade secret. The employer may seek damages against such a person for revealing the secret. In addition, the owner of a trade secret involved in a lawsuit may request a "protective order" from the judge to prohibit revelation of a trade secret or a sealing of the record in the case where references to the trade secret are made. A trade secret is a business process and not a patentable invention.

     trademark
n. a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product. Words that merely name the maker (but without particular lettering) or a generic name for the product are not trademarks. Trademarks may be registered with the U.S. Patent Office to prove use and ownership. Use of another's trademark (or one that is confusingly similar) is infringement and the basis for a lawsuit for damages for unfair competition and/or a petition for an injunction against the use of the infringing trademark.

     treble damages
n. tripling damages allowed by state statute in certain types of cases, such as not making good on a bad check or intentionally refusing to pay rent. Federal antitrust violations also carry treble damage penalties.

     unfair competition
n. wrongful and/or fraudulent business methods to gain an unfair advantage over competitors, including: a) untrue or misleading advertising, b) misleading customers by imitative trademark, name or package, c) falsely disparaging another's product. Although state laws vary, unfair competition is the basis for a legal action (suit) for damages and/or an injunction to halt the deceptive practices against an unfair competitor if the practices tend to harm one's business.

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