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The Scope of Protection Offered by Intellectual Property Law


Tangible Property:
Property that is real and concrete; property that can be physically touched or moved.

Intangible Property:
Property that is incapable of being perceived by the senses and incapable of being clearly pointed to or defined. Intellectual property is a form of intangible property.

The expiration of the rights of an intellectual property holder regarding a physical manifestation of that property (such as a book) that occurs because the holder of the property right has placed the physical manifestation into the stream of commerce.

Public Policy:
Concerns that may be taken into account by courts in deciding a particular case that have not been directly dealt with by a statute. Public policy can be used by a court to refuse to apply a seemingly applicable law because it deems that the application of the law in the particular case may have adverse social or legal consequences that outweigh the interest of applying the law in question.

United States Patent and Trademark Office (“USPTO”):
The agency in the United States Department of Commerce which provides patent and trademark protection to inventors and businesses for their inventions and product identification. 

Intangible Property with a Tangible Component

Intellectual property law differs from other property law in that intellectual property law protects rights in intangible property, whereas other property law protects tangible, or physical, property. Thus, intellectual property law deals with abstract concepts, rather than with concrete physical objects. The physical manifestations of the work product of the protected intellectual property may be protected by other property law, but it will not be protected by intellectual property law. For example:

EXAMPLE: John G. writes a novel in which four lawyers and four paralegals devise a confidence scheme and bilk gullible clients out of 20 million dollars. One day, he accidentally leaves the manuscript in an airport restroom, where it is promptly found by Scott. Scott takes the manuscript home and works on it and re-types it, but has not passed the work off as his own, distributed it or used it for commercial purposes in any way. 

In the above example, since Scott has not violated any copyright laws to this point, John has no cause of action against Scott that is based in intellectual property law. He may be able to successfully sue Scott to re-acquire his manuscript, but that would be a matter of personal property law, not intellectual property law.

EXAMPLE: Three weeks later Scott decides that the story is so good it must be shared with the world. He therefore posts the document on his website.

Because Scott has now distributed a copy of the original work, the author might have recourse through copyright law.

Nevertheless, is must be noted that, in order for a concept or idea or work to be eligible for intellectual property protection, it must have been committed to a physical form at some point. The idea itself, without expression of the idea, is not protected. 

Copyrights, for example, are only effective when they are expressed by

“tangible medium of expression… from which they can be perceived, reproduced, or otherwise communicated.” - See 17 USCS § 102

Trademarks come into existence by being used to the point that the identifying symbol becomes synonymous with the product.  See American Tobacco Co. v. Polacsek, 170 F. 117 (S.D.N. Y. 1909). Unlike a copyright, this might take some time to establish. 

An invention or method must be produced, and its specifications committed to paper, before it can be eligible for patent protection. See 35 U.S.C. § 112

Abstract ideas never committed to concrete form are not eligible for protection under intellectual property law. 

EXAMPLE: Marty thinks of a great idea for a new type of scooter. He envisions a complex engine and system of air blowers for the scooter that would generate an air cushion under the scooter while it’s in use that would allow it and its rider to glide on water. He works for 6 months in his basement, using his calculator and complex mathematical formulas upon which the design would have to be based until he finally figures out how it would have to work. In addition, he tells all of his friends about his idea and the concepts behind how it would operate. Unless Marty produces a prototype or at least commits his design to writing or some other form of recording, his idea cannot be protected by intellectual property law.

Limitations of Rights Granted by Intellectual Property Law

It is important to note that intellectual property law grants only the right to exclude other people from using, marketing or otherwise taking advantage of the intellectual property developed by the holder. It does not inherently grant the owner the right to use the protected intellectual property, if to do so would violate any law or public policy.

EXAMPLE: Doogie is a registered nurse who has a strong background in medicine and in science. In his own lab that he has set up in his basement, he develops a breakthrough surgical procedure for the treatment of foot warts. He applies for and receives a patent for his procedure. Since he has no license to practice medicine, it would probably be a violation of the law for Doogie to carry out this procedure on a patient. Therefore, he may not do so, his patent notwithstanding. He can, however, prevent a licensed medical practitioner from performing the procedure without his permission (absent any other public policy reasons for forcing him to license his invention).

In addition, the effectiveness of intellectual property rights is limited by the doctrine of “exhaustion.” This rule dictates that once a physical copy of a work that contains protected intellectual property has been transferred or sold, the holder of the intellectual property rights cannot prevent the re-sale of such record. See 17 U.S.C. § 109. Although, the copyright holder can, of course, prevent a buyer from reproducing or mass marketing the work, and/or may prevent the buyer from holding the work out as his or her own. Also, the buyer cannot rent the work to others.

EXAMPLE: A.J. Dowling writes, publishes and markets a book called “Larry Pothead and the Half-Stoned Wizard Formerly Known as Prince.” Timmy buys the book for $19.95 from his local bookstore. After reading the first 200 pages, and thus being about 1/10 of the way through the book, Timmy gets bored and decides he’d rather play outside than read. Thus, he turns around and sells the book to Sue. Dowling cannot prevent this sale because her rights to market and sell this particular copy are exhausted as soon as Timmy buys the book in the first place. However, Dowling can prevent Timmy from photocopying the book’s pages and re-selling the photocopies to third parties.

Note, the rule of exhaustion also allows the work to be re-sold at whatever price the secondary market will allow. The holder of the intellectual property right cannot disallow the re-sale of the work for a lower or higher price than the work was originally sold for. In essence, the holder of the intellectual property right has no legal control over the secondary market for works that he or she puts in the stream of commerce by selling or giving away. See Bobbs-Merrill Co. v. Snellenburg, 131 F. 530 (E.D. Pa. 1904).

Limitations on What Can Be Protected

The laws of intellectual property are very broad in what they can reach. See Diamond v. Chakrabarty, 447 U.S. 303 (1980), in which the Supreme Court noted that patent law was meant by Congress to apply to

"anything under the sun that is made by man."

Nevertheless, there are categories of intellectual property that may not be protected because to do so would violate public policy.

For example, laws of nature may not be patented, although their application to real life problems may be protected. 

EXAMPLE: Newton Isaacs discovers a mathematical formula that measures the gravitational pull that objects have on each other based on their masses and distance from each other. This information, though extremely useful, is not protectable under intellectual property law. Thus, if Kim Thorpe wants to use Isaacs’ formula to solve a physics problem, Isaacs cannot stop him. However, if Isaacs uses his formula to invent a new type of sneaker that can help the wearer resist gravity, the process by which that sneaker is made (and possibly the sneaker itself), can, of course, be protected by patent law.

Protection for intellectual property works can also be denied on public policy grounds. Courts have denied patents for devices that are illegal to use or are often used for illegal activities. See Williams Mfg. Co. v. Prock, 184 F.2d 307 (5th Cir. 1950) (denying a patent for a gambling device when gambling was illegal under state law). In addition, the United States Patent and Trademark Office has refused to grant a patent on an animal-human embryo, ruling that the grant of such a patent would be against public policy. There is also a statutory provision that disallows patents for atomic weaponry. See 42 U.S.C. § 2181.

Still, in general, it is questionable as to whether courts hearing intellectual property cases and the United States Patent and Trademark Office are the proper arbiters of what is and what is not against public policy. Therefore, as a general principle, almost any intellectual property can be protected and it is up to Congress and/or state legislatures to carve out exceptions as those bodies see fit.