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INTELLECTUAL PROPERTY
QUESTIONS AND ANSWERS
 Why should
I seek a patent? The reasons given most for seeking a patent are:
(1) potential investors say that patents are important to their investment
decisions; (2) owners and investors want to maximize their avoidance of
costly infringement lawsuits by others having the same
invention; (3) owners and investors want have a patent of their
own to provide leverage in cross-licensing negotiations with others
that may have similar patents; (4) owners and investors want to
display "signals" of business competency in owning intellectual
property that is the foundation of their business; and, (4) investors want
to see a patent so there could be some marketable asset if the company
fails in the market.
Do Trademarks, Service Marks, Copyrights and Patents
protect the same things? No. Trademarks,
copyrights and patents all differ.
- A trademark is a word, phrase, symbol or design, or a combination of
words, phrases, symbols or designs, that identifies and distinguishes
the source of the goods of one party from those of others.
- A service mark is the same as a trademark, except that it identifies
and distinguishes the source of a service rather than a product.
- A copyright protects an original artistic or literary work.
- A patent protects an invention.
What Is a Patent? A patent for an invention is
the grant of a property right to the inventor, issued by the United States
Patent and Trademark Office. The right conferred by the patent grant is,
in the language of the statute and of the grant itself, "the right to
exclude others from making, using, offering for sale, or selling" the
invention in the United States or "importing" the invention into
the United States. What is granted is not the right to make, use, offer
for sale, sell or import, but the right to exclude others from making,
using, offering for sale, selling or importing the invention.
What Is a Patentable? The controlling United
States Statute is 35
USC 101 and it provides that "Whoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof,
may obtain a patent therefor, subject to the conditions and requirements
of this title."
Excluded from patent protection by judicial decision are laws of
nature, physical phenomena and abstract ideas. See the web pages on software
and business
methods for some discussion of what fits under these exclusions.
Do I Have to Commercialize My Invention?
No. You must only disclose the invention in the manner
prescribed. The Patent Clause of the United States Constitution
authorizes Congress “[t]o promote the Progress of Science and useful
Arts, by securing for limited Times to . . . Inventors the exclusive Right
to their respective . . . Discoveries."
The Patent laws enacted pursuant thereto require disclosure of the
invention in return for a right to exclude for a limited time. The disclosure must be complete and show how to make and use the invention. For example, a patent application must describe the invention in such a way that it is understandable to a person of ordinary skill in the art. A mere wish or plan¯ for obtaining the claimed invention is not an adequate written description. Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566 (Fed. Cir. 1997).
The
Supreme Court explained, "The disclosure required by the Patent Act
is 'the quid pro quo of the right to exclude.'" J.
E. M. AG Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S.
124 (2001). The Supreme Court later explained that it is a
"given that immediate disclosure is not the objective of, but is exacted
from, the patentee. It is the price paid for the exclusivity
secured." Eldred
v. Ashcroft, 537 U.S. 186 (2003).
Commercialization may be the means to get a return on your invention,
but it is not a part of the bargain for the exclusive rights
granted. The bargain involved in a patent is that society gains by
the addition to the public domain of a new and innovative intellectual
idea and in return grants a 20-year right of exclusivity.
Is a Novel Idea Enough to File for a Patent?
You do not have to have an actual device or a prototype to obtain a
patent. However, in order to obtain a patent you must describe the
invention in such a way so that others can make and use the invention
after the patent expires. In other words, you must describe how your
invention is made and what it does. The invention may not be obvious over
existing technology and must be useful. The invention must
accomplish a practical application. That is, it must produce a “useful,
concrete and tangible result.” You may be able to obtain a patent
even if you are using components that can be obtained commercially and
used in your invention, even though you don't know how those components
work. However, if those components are patented themselves, you will not
be able to employ your patent unless you have a license to use those
patented components.
What is Prior Art? It is a
very broad category describing what is already known. For example, it
includes any invention patented anywhere in the world or any published
information anywhere in the world. The term, "prior art" is
relevant because a patent application will be rejected, or a patent
declared invalid if issued, if someone else had described the invention in
open literature before the application was filed. In some cases, even
unpublished prior art by another may affect patentability, for example if
inventors are working on a research team and one inventor knows of another
secret invention and makes an obvious improvement to it. A patent
application for the obvious improvement to it could be rejected by the
patent office even though the other invention was secret and not
published!
What Disqualifies My Invention for
a Patent? For patent applications with claims having a priority date before 16-MAR-2013, the law (35 USC 102) can be divided into 7 broad activities or events that when present, prevent a patent from issuing, or if one issues, for invalidating
the patent.
Essentially and paraphrasing:
- 1. The claimed invention was patented before the effective filing date of your application.
-
2. The claimed invention was described in a printed publication before the effective filing date of your application.
-
3. The claimed invention was in public use before the effective filing date of your application.
-
4. The claimed invention was on sale before the effective filing date of your application.
-
5. The claimed invention was otherwise available to the public before the effective filing date of your application.
-
6. The claimed invention was described in a patent issued to an assignee.
-
7. The claimed invention was described in a published patent or patent application and it names another inventor and it was effectively filed before the effective filing date of the claimed invention.
Note: GRACE PERIOD. The U.S. gives inventors a 1-year grace period in which to file an application after the inventor disclosing the invention to the public. However, it is very risky to rely on this grace period because if someone else publishes the invention with a small variation (even an obvious variation) after the inventor publishes and before the inventor files his application, then this could result in no grace period for the earlier inventor.
Some form of grace period to file a patent application after an inventor's own publications concerning his invention is reportedly available in 38 nations.
Reportedly, 19 nations have a general grace period of twelve months preceding the Paris Convention priority date: Albania, Argentina, Armenia, Australia, Belarus, Brazil, Bulgaria, Ecuador, El Salvador, Estonia, Ghana, South Korea (12 months, Article 30, Paragraph 1, 15-MAR-2012 amendment), Mexico, Moldova, Panama, the Phiilippines (Rule 205), Peru, Romania, Slovenia, Turkey and Ukraine. Ghana has not been confirmed. Of these nations, 4 may require satisfaction of one or more formalities for invoking the grace period: Argentina, Brazil, Japan, and Mexico.
Reportedly, 12 countries have a grace period of 12 months preceding the national filing date in that country: Barbados, Canada, Kazakhstan, Malaysia, Saudi Arabia, Sri Lanka, Trinidad and Tobago, and the United States.
Reportedly, 2 countries have a grace period of 6 months prior to the Paris Convention priority date: North Korea and Lesotho.
Reportedly, 4 countries have a grace perior of 6 months prior to the national filing date in that country: Lithuania, Japan, Russia, < and Eurasia (6 months). Of these countries, South Korea may require satisfaction of one or more formalities for invoking the grace period.
Countries that reportedly offer a grace period in certain specific
circumstances are: Tanzania (1 year), Chile (6
months), China (6 months), Egypt (6 months); European Union (6 months); Indonesia (6 months), Israel (6 months); Kazakhstan (6 months), Portugal (1 year), Singapore (1 year),
Spain (6 months), Taiwan (6 months) and Vietnam (6 months). For example, in the case of the European Union, if
the applicant willingly discloses the invention before a patent
application is filed in Europe, such disclosure will disqualify the
invention for patent protection in Europe, with a limited exception of a
6-month window for displaying the invention at an official international
exhibition falling within the terms of the Convention
on international exhibitions.
Almost all the other countries have no grace period for non-abusive
disclosures prior to filing for a utility patent.
For a Registered Community Design (a design patent) in the European
Union, there is a 12 month grace period.
For patent applications with claims having a priority date after 16-MAR-2013, the law (35 USC 102) expands the scope of disqualifying prior art publications. The law for disqualifying inventions (35 U.S.C. 102) for patentability has been amended for claims in patent applications having an effective filing date on or after 16-MAR-2013. Any claim with an effective date of 16-MAR-2013 or later will be subject to challenge based on prior art evidence that the claimed invention was sold, offered for sale or used anywhere in the world. There is also the risk that patent protection will be denied based on U.S. patents and U.S. published patent applications that originated in foreign countries because the disqualifying date for such a patent or published application will be the respective filing date in the foreign country.
Note: U.S. GRACE PERIOD SIGNIFICANTLY DIMINISHED IN PROTECTING AN INVENTOR. Effective 16-MAR-2013, the U.S. 1-year grace period (35 U.S.C. 102(b)(1)) has substantial risk to it that another inventor's publication after the public disclosure of your invention but before you file your application, could be disqualifying prior art, even though you filed within a year of your first public discolsure. Essentially, if a subsequent discloser publishes something that is not "identical" to your earlier invention disclosure, then it is prior art to your invention even though you filed within a year of your disclosure. The USPTO has said that the subject matter of the other inventor's disclosure must be the same as your previously public disclosure and that the grace period will not be accorded any weight even if the only differences between the subject matter are "mere insubstantial changes, or only trivial or obvious variations." The USPTO clarified the "insubstantial" comment by explaining that the other inventor's publication does not have to be "verbtim" of your earlier publication. It also said that the grace period applies to subject matter of the intervening disclosure that is simply a more general description of the subject matter previously publicly disclosed by the inventor. For example, the inventor or a joint inventor had publicly disclosed elements A, B, and C, and a subsequent intervening grace period disclosure discloses elements A, B, C, and D, then only element D of the intervening grace period disclosure is available as prior art. The USPTO position holds substantial risk that the grace period is no longer something that can be relied upon by inventors.
If the other inventor publishes before you file and before you publish, then the other inventor's publication is disqualifying prior art for your invention.
Further, the U.S. Patent and Trademark Office, notwithstanding the one-year grace period, could apply an inventor's prior art against any of his or her claims that seek protection beyond specific embodiments that the inventor publicly disclosed.
A prior public disclosure by a co-worker or collaborator is prior art unless it was obtained from the inventor or been previously disclosed from the work of the inventor, regardless of whether the subject matter of the prior disclosure and the claimed invention was commonly owned not later than the effective filing date of the claimed invention.
The new law seems to literally grant a grace period for public disclosures, but not for public uses or sales. The pre 16-MAR-2013 law (section 102(b)) explicitly covers a sale or public use and this was deleted in the re-write made by the new law. This may be an oversight, but as the law now stands, it could be interpreted to prevent issuance of a patent if the inventor makes a public use or public sale prior to filing an application. So, to be safe, an inventor should file first before offering the invention for sale or making a public use of the invention.
The term "priority date" for a patent application means the filing date of the earliest application for which the patent application is entitled. Under the law, one can claim priority to an earlier application when filing a subsequent related application. For example, if an inventor files a provisional application on 01-APR-2013 and files a non-provisional application on 01-APR-2014 and claims priority to the priovisional application, then the priority date for the non-provisional application is the filing date of the provisional or 01-APR-2013.
Can I prepare and file my application by myself? The whole point in getting a patent is to get something you might be able to sell, or convince someone to invest in, or simply to prevent others from copying and selling in competition with you. For example, an investor is going to have the patent examined by a professional to see if his investment can be protected. This is part of what is called "due diligence." If the patent you obtain can be easily circumvented or invalidated, then you will have not only wasted the investment in your patent, but failed to gain an incentive for others to invest.
While it may be possible to write your own claims and supporting description, for most, this will not be a smart move. As early as 1892, the Supreme Court of the United States explained in the case of Topliff v. Topliff, 145 U.S. 156, 171; 12 S.Ct. 825; 36 L.Ed. 658 (1892) that a patent application is one of the most difficult legal instruments that can be drafted:
"The specification and claims of a patent, particularly if the invention be at all complicated, constitute one of the most difficult legal instruments to draw with accuracy, and in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention."
I Want to Proceed, What Do I Do Next?
- For a patent, you may telephone
or email Louis Ventre, Jr. and find additional patent
information by clicking here.
You will get a free initial consultation. Attorney Louis Ventre,
Jr. may not be able to represent you because of potential conflicts of
interest, or for some other reason. However, if you and Attorney
Louis Ventre, Jr. agree on representation, you will be sent a retainer
agreement to sign, which will formally establish a lawyer-client
relationship. After you and Louis Ventre, Jr. both agree on
representation, you'll get a free preliminary patentability
determination, with your money back if you then decide not to proceed
with the patent application.
- For a trademark, you may telephone
or email Louis Ventre, Jr. and find additional trademark
information by clicking here. You will get a free initial
consultation. Attorney Louis Ventre, Jr. may not be able to represent
you because of potential conflicts of interest, or for some other
reason. However, if you and Attorney Louis Ventre, Jr. agree on
representation, you will be sent a retainer agreement to sign, which
will formally establish a lawyer-client relationship.
- For a copyright, you may telephone
or email Louis Ventre, Jr. and find additional copyright
information by clicking here. You will get a free initial
consultation. Attorney Louis Ventre, Jr. may not be able to represent
you because of potential conflicts of interest, or for some other
reason. However, if you and Attorney Louis Ventre, Jr. agree on
representation, you will be sent a retainer agreement to sign, which
will formally establish a lawyer-client relationship.
- For other intellectual property
requirements, you may telephone
or email Louis Ventre, Jr. You will get a free initial
consultation. Attorney Louis Ventre, Jr. may not be able to represent
you because of potential conflicts of interest, or for some other
reason. However, if you and Attorney Louis Ventre, Jr. agree on
representation, you will be sent a retainer agreement to sign, which
will formally establish a lawyer-client relationship.
How Long Does a Patent Last? The term of a new Utility
and Plant Patents
is 20 years from the date on which the application for the patent was
filed in the United States. The term of a new design patent is fourteen
years from the date of patent grant.
Filing a provisional
patent application first and then a non-provisional patent application
can have the effect of extending patent protection an additional year.
However, patent protection lapses if the owner fails to pay maintenance
fees due 3.5, 7.5 and 11.5 years from the patent issue date. Also, when
the Patent Office delays a the grant of a patent because of appeals,
interferences, or the placement of secrecy orders, patent term extensions
or adjustments may be available.
Is a U.S. Patent Honored in Other Countries?
U.S. patent grants are effective only within the United States, U.S.
territories, and U.S. possessions. See the page on PCT
applications for more information on international patent protection.
On your PCT page, you said it is easy to make
deadline mistakes; can you give me an example? Yes. WIPO published
(March, 2005) this "practical advice" question and answer, which
I reproduce here in its entirety:
Time limit for submitting a formal response to a written opinion of the
ISA where a demand for international preliminary examination is being
filed.
Q: I intend to file a demand for international preliminary examination,
as well as a response to the written opinion of the ISA (in the form of
arguments), including amendments under Article 34. I will file the
demand within the new time limit under PCT Rule 54bis for filing demand.* However, that time limit will expire very shortly
and the response to the written opinion is not ready yet. Does the
response to the written opinion have to be filed at the same time as the
demand, or can it be filed later, and if so, what is the time limit for
doing so? Can the time limit for filing the response be extended? What
happens if the response is submitted late?
A: At the earliest, a formal response to the written opinion of the
International Searching Authority (ISA) and/or amendments under PCT
Article 34 may be submitted by the applicant to the International
Preliminary Examining Authority (IPEA) together with the demand. At the
latest, such responses may be submitted until the time when the examiner
at the IPEA starts to draw up the international preliminary report on
patentability (Chapter II of the Patent Cooperation Treaty) (IPRP
(Chapter II)) (PCT Rule 66.4bis).
The time when the IPEA starts to draw up the IPRP (Chapter II) depends
on the inner workings of the IPEA and is therefore difficult to monitor
for applicants; at the earliest, it should not normally be before the
time limit under PCT Rule 54bis.1(a) for filing the demand (that is,
within 3 months from the date of transmittal of the international search
report (ISR) and of the written opinion of the ISA, or within 22 months
from the priority date, whichever expires later) (see PCT Rule 69.1). It
is more likely to occur very shortly after the expiration of that time
limit where the first written opinion (established by the ISA) is used
by the IPEA as its own first opinion (PCT Rule 66.1bis(a)). One rather
exceptional situation which may result in the IPRP (Chapter II) being
drawn up before the expiration of that time limit would be if both the
demand is filed early, before the international search has started, and
if the ISA also acts as IPEA, in which case the international
preliminary examination may start at the same time as the international
search (see PCT Rule 69.1(b)).
Note that if the IPEA is not the same as the ISA, and the IPEA has
notified the International Bureau under PCT Rule 66.1bis(b) that the
written opinion of the ISA will not be considered by the IPEA as its own
written opinion (the European Patent Office is the only Office which has
made such a notification-see PCT Newsletter No. 01/2004, page 4), you
will receive an additional written opinion established by the IPEA (Form
PCT/IPEA/408), and will therefore be given an additional opportunity to
respond to the written opinion within a time limit fixed by the IPEA.
That time limit may be extended upon request (see PCT Rule 66.2(e)).
If the IPEA does consider the written opinion of the ISA to be its own
written opinion (PCT Rule 66.1bis(a)), and you intend to file a response
to that written opinion with the intention that it be considered by the
IPEA, but are not in a position to submit it with the demand, and
especially if you are in danger of missing the time limit under PCT
Rule54bis.1(a), you could try and delay the establishment of the IPRP
(Chapter II) until your response has been received by the IPEA by:
- asking the IPEA to wait until a formal
response has been received before it starts to draw up the IPRP
(Chapter II), either by a letter filed with the demand, or by phone
with the examiner in charge of your case (but bear in mind that, if
the time limit under PCT Rule 54bis.1(a) has expired, it will be at
the discretion of the IPEA whether it will wait for your formal
response); or
- checking Box No. IV, item (1), on the Demand
Form to indicate that you wish the international preliminary
examination to start on the basis of the description, claims or
drawings as amended under PCT Article 34. If you do not submit such
amendments with the demand, the IPEA will invite you to submit the
amendments within a time limit fixed in the invitation (see PCT
Rule60.1(g)) and should not start the international preliminary
examination before it has received the amendments or before the time
limit fixed in the invitation has expired, whichever occurs first (see
PCT Rule 69.1(e)). Note that, apart from the situation where the IPEA
issues its own written opinion (see third paragraph of this answer),
this is the only situation in which the IPEA will invite the applicant
to submit the amendments- it will not issue any reminders otherwise.
In order to be certain that your amendments and arguments will be
taken into account by the IPEA, it is therefore in your best interest,
wherever possible, to respond as soon as possible to the written
opinion of the ISA, preferably, at the time of filing the demand, or
at least not later than at the expiration of the time limit under PCT
Rule 54bis.1(a). When this is not possible, however, your best option
is to follow one of the two alternatives mentioned above.
Note that this item relates specifically to formal responses under
Chapter II to the written opinion of the ISA, and that informal
comments under Chapter I on the written opinion of the ISA are dealt
with separately in the "Practical Advice" in PCT Newsletter
No.10/2004. For further information on responses under Chapter II to
the written opinion of the ISA, see PCT Applicant's Guide, paragraphs
393 to 394. For general information on the new search and examination
system, see the "Practical Advice" in PCT Newsletter No.
12/2003.
*The demand must still be filed within 19 months
from the priority date where the applicant wishes to enter the
national phase (rather than the regional phase) in those States which
have not withdrawn their notifications of incompatibility of PCT
Article 22(1).
What is Patentable? Any new and useful process,
machine, article of manufacture, or composition of matter, or any new
useful improvement thereof, is patentable. The Patent Office classifies
this type of patent as a "Utility
Patent." Software
inventions are filed as utility patent applications.
Also, one can patent a new, original, and ornamental design for an article
of manufacture. The Patent Office classifies this type of patent as a Design Patent.
A design patent protects only the appearance of the article and not its
structural or utilitarian features. Also, see this Law Firm's page on design patents.
A design patent is a relatively inexpensive and effective method to
protect against knock-offs that use non-infringing technology, but
nevertheless attempt to outwardly look like a patented product. The
subject of a design patent application must be distinctive and must not be
dictated solely by function.
Finally, one can patent any distinct and new variety of plants that can be
asexually reproduced. The Patent Office classifies this type of patent as
a Plant Patent.
Other types of intellectual property protection for plants are also
available.
A provisional
patent application may provide added benefits, if filed prior to a
non-provisional utility patent application.
How Do I Know Whether I Need a Design or Utility
Patent? In general terms, a "utility patent" protects the
way an article is used and works, while a "design patent"
protects the way an article looks, that is, the novel, ornamental
features. Both design and utility patents may be obtained on an article if
invention resides both in its utility and ornamental appearance. While
utility and design patents afford legally separate protection, the utility
and ornamentality of an article are not easily separable. Articles of
manufacture may possess both functional and ornamental characteristics.
However, a design for an article of manufacture that is dictated primarily
by the function of the article lacks ornamentality and is not proper
statutory subject matter for a design patent.
What is a Disclosure Document Filing? This
filing is no longer available. The U.S. Patent and Trademark Office
announced that its Disclosure Document Program was discontinued as
of February 1, 2007.
When it was in effect, a Disclosure Document filing was an
inventor-signed paper disclosing an invention. The date of the Disclosure
Document's receipt in the United States Patent and Trademark Office
was evidence of a date of conception if it is referenced in a
related patent application.
A Disclosure Document was not a patent application, and the date of its
receipt in the Patent Office did not become the effective filing date of
any patent application subsequently filed.
One final caution: mailing yourself a sealed letter with invention
documents enclosed is not an accepted method of proving your invention's
conception date to the United States Patent and Trademark Office.
Are patent applications published by the Patent
Office? Utility patent applications filed on
or after November 29, 2000 are published after 18 months. Design patent
applications are not published. Publication provides "provisional
rights" under 35 U.S.C.
§154(d) to obtain a reasonable royalty during the period beginning on
the date of publication of the application by the United States Patent and
Trademark Office and ending on the date the patent is issued.
The right to collect damages from publication to issuance are termed
"provisional rights" because they are dependent upon conditions
being met. An important condition is that but liability depends on actual
knowledge of the infringer of the published application.
Also, such provisional rights may not be available if a substantive
change has been made to a claim during patent prosecution after
publication. "Although not a per se rule, "it is difficult to
conceive of many situations in which the scope of a rejected claim that
became allowable when amended is not substantively changed by the
amendment." Id. at 1348. Where a substantive change has been made to
a claim, the allegedly harmed party has no provisional rights to
assert." Pandora Jewelry, LLC v. Chamilia, LLC (D. Md., August 8,
2008)
An application may be published earlier than the end of such
eighteen-month period at the request of the applicant. The applicant can
prevent publication if an applicant makes a request upon filing the
application certifying that the invention has not and will not be the
subject of an application filed in another country, or under a
multilateral international agreement, that requires eighteen-month
publication.
Can a Citizen of a Country Other than the United
States Apply for a Patent or a Trademark in the United States? Yes.
Anyone in the world may apply for a United States patent or trademark. A
patent application must be in the name of the inventor.
Where there is more than one inventor, all must apply. Each inventor must
state his or her address and citizenship. A word of caution is
advised: Many countries make it a criminal offense to file for a
patent in another country without obtaining a license from the home
country's patent office. See http://www.lventre.com/foreign.html
for more information.
Some trademark service providers state that they may
consult with the United States Patent and Trademark Office before they
submit an application: Is that true? Be very wary of claims such as
this. The United States Patent and Trademark Office will answer process
questions, but under no circumstances will any employee comment about
whether a mark is eligible for registration.
Trademarks in Other Countries? Trademark
offices in many countries register marks without comparing them with
existing trademark registrations and applications received earlier. They
leave it to competitors to give notice of opposition once the mark or the
application has been published/registered. Therefore, obtaining trademark
registration in such countries is no guarantee that the trademark will not
be infringing on the rights of others.
What is "Fair Use" in
terms of using copyrighted material? Fair use is a defense to
copyright infringement. One might think that such a defense would be
clearly defined. While it is a part
of U.S. Code, fair use is highly specific to the facts of a use. For
example, a backup copy of a CD for one's personal use clearly fits into
this definition. Other situations are not so clear and often involve
the evaluation of eight factors. Pierre N. Leval, now a Judge on the
Second Circuit Court of Appeals, explained in his article
"Commentary: Toward a Fair Use Standard" in the Harvard Law
Review. 103 Harv. L. Rev. 1105 (1990) that fair use "must be of a
character that serves the copyright objective of stimulating productive
thought and public instruction without excessively diminishing the
incentives for creativity." The
notes accompanying U.S. Code include some of the Report from the House
of Representatives, which is a good part of the background on the fair use
defense. Judicial decisions add considerably to the U.S. Code.
One of the better on-line analyses of fair use is at a University of Texas site. While this site discusses it
in terms of course materials, it is useful to understand the factors
involved. If you would like an opinion for a definitive situation, please contact
The Law Firm of Louis Ventre, Jr. for a free initial consultation.
What is a "compulsory
license" in terms of using copyrighted material?
Compulsory licensing applies to the making and distribution of
phonorecords of nondramatic musical works. The law provides that, once
phonorecords of a musical work have been publicly distributed in the
United States with the copyright owner's consent, anyone else may, under
certain circumstances and subject to limited conditions, obtain a
"compulsory license" to make and distribute phonorecords of the
work without express permission from the copyright owner.
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