U.S. federal IP law is directly authorized by the Constitution as far as copyright and patents are concerned. With respect to trademarks and other types of IP, the federal government has the power to legislate only because of its ability to regulate commerce. Moreover, by granting Congress the power to create legislation in the area of copyright and patents, the Constitution does so with the express purpose of “promoting development” in relevant areas. This language has been interpreted as basing American IP law on the idea of promoting the diffusion of economic goods and increasing the amount of innovation and creative works available to people.
Although the federal government is active in IP law to the maximum extent permitted by the Constitution, state laws are still important to IP law. Therefore, it is important to note that human rights and obligations can only be fully understood with reference to federal and state law.
Government Regulatory Agencies.
Congress has delegated regulatory authority relevant to IP to the following federal agencies:
The U.S. Copyright Office at the Library of Congress registers copyright applications and makes copyright assignment records in accordance with the Copyright Code. Unlike other agencies, the Library of Congress is organized under the auspices of the legislature.
The USPTO under the Department of Commerce grants United States patents under the Patent Code, registers trademarks under the Lanham Act, and handles some disputes through either the Patent Trial and Appeal Board (PTAB) or the Trademark Trial and Appeal Board (TTAB).
The U.S. Food and Drug Administration (FDA) under the Department of Health and Human Services administers theFDCA, including preservation of exclusive data rights, patent term extensions, and other forms of sui generis intellectual property under the Act.
The Office of Plant Variety Protection under the Department of Agriculture administers the Plant Variety Protection Act by issuing certificates of protection to plant breeders.
The Indian Arts and Crafts Council of the Department of the Interior administers the Indian Arts and Crafts Act.by issuing certificates of protection to breeders.
The CMT, an independent agency within the executive branch, handles IP disputes related to the importation of potentially infringing goods.
Regulatory Framework and Current Issues
Copyright
Copyright protection in the United States is authorized by the Copyright Clause of the U.S. Constitution. Current copyright laws are codified in Title 17 of the United States Code. The federal copyright statutes are compiled in Title 37 of the Code of Federal Regulations. Federal copyright law has superseded most state copyright law since 1978.
Copyright is automatically correlated with the creation of an original work of authorship; however, registration with the Copyright Office is useful in copyright litigation and necessary to obtain statutory damages in the event of infringement. In many cases registration is required before filing a lawsuit against the infringer, although registration does not change the existence of protection.
Integrated circuit topologies or topographies (topography) of integrated circuits are protected under US copyright law, although protection is more limited than in the case of other copyrighted works.
U.S. copyright law is based on the utilitarian concept that copyright should encourage the creation of works rather than protect the personal rights of the author. This purpose of copyright is established in the Constitution: “to promote science and useful crafts.” Thus, the United States recognizes only minimal non-property rights of authors under copyright law. In passing the Berne Convention Implementation Act, the US Congress stated that the non-property rights in Section 6bis sufficiently protected by laws outside the Copyright Code, such as defamation, unfair competition and publicity[10]. An exception is the Visual Artists Rights Act of 1990 (VARA), which is part of the Copyright Code, but applies only to works of visual art and considers only attribution and integrity rights. U.S. law does not distinguish between copyright and related rights.
Patents and utility models
Patents in the United States are allowed by the Patent Clause of the U.S. Constitution. Until recently, the United States used a “first-to-invent” patent system in which competing patents or patent applications determine their priority based on the date of invention. The America Invents Act moved the United States in 2013 to a more general “inventor first to file” system in which priority is based on the filing date. The patent code is contained in Title 35 of the United States Code. The federal regulations pertaining to patents are collected in Title 37 of the Code of Federal Regulations. Patents are governed exclusively by federal law.
The USPTO regularly publishes a Manual of Patent Examination Procedure (MPEP) for use by patent attorneys, agents, and examiners. The MPEP describes all the laws and regulations that must be followed in the examination of U.S. patent applications and references relevant case law. The USPTO also deals with patent applications as outlined in the MPEP. While patent attorneys may be used to assist in the application process, the USPTO has a separate examination for those who practice patents. Therefore, there are “patent agents” who, while not lawyers, are permitted to practice before the USPTO.
Three types of patents can be granted:
Invention patents (for any new, useful and non-obvious process, machine, article of manufacture or composition of components, or any new, useful and non-obvious improvement thereof),
design patents (for any new, original and artistic design of an industrially produced product) and plant patents (for any distinctive and new variety of plant reproduced by asexual reproduction, except for plants propagated by rootstocks).
The current utility patent term is twenty years from the earliest claimed filing date, but it can be extended to compensate for delays at the patent office or in obtaining FDA approval under the Medicines Price Competition and Patent Term Renewal Act (also known as the “Hetch-Waxman Act”). The FDCA also has quasi-patent rights in the form of exclusive market rights for manufacturers of both generic and patented drugs under certain circumstances. For example, exclusive market rights are granted to orphan drugs developed specifically to treat rare diseases under the Orphan Drug Act.
Under limited circumstances, U.S. law provides for a one-year grace period for filing after disclosure. In general, the first disclosure must be made by the applicant or by someone authorized by the applicant to make the disclosure.
Emerging areas of intellectual property
Genetic Resources.
U.S. law does not address the protection of genetic resources under intellectual property.
Traditional knowledge and cultural expressions
The Indian Arts and Crafts Acts of 1935 and 1990 (IACA) were enacted to encourage the development of Native American arts and crafts, to protect and preserve cultural heritage, and to prevent commercial interests from fraudulently associating their goods or services with Native peoples. The Indian Arts and Crafts Council, created by the 1935 Act, may refer IACA violations to the Federal Bureau of Investigation and may also recommend that the United States Attorney General (Department of Justice) initiate criminal prosecutions or civil enforcement actions. Criminal and civil penalties include large fines and imprisonment.
The USPTO Tribal Distinctive Signs Database permits registration and promotes the protection of the emblems or symbols of any federally or state-recognized Native American tribe that are brought to the USPTO by the tribe itself, by providing evidence of the relationship between the tribe and its distinctive signs. However, registration provides no additional benefit to the distinctive marks and is not considered a trademark. Therefore, the primary use of registration is to prevent third parties from registering a trademark containing such distinctive marks.