Essays on Copyrights and intellectual property

Infringement

Infringement is the uses of ideas, products, or components of a patented item for sale within another product. “A person, other than a patent owner, infringes a patent when he offers for sale or supplies products that constitute essential elements of an invention to parties unauthorized to use such invention” (.Fišer-Šobot, 2010 p 12). According to the Encarta Dictionary, to infringe is simply to disobey or disregard something. In the following cases however, “if the offerer or supplier knows or has demonstrable grounds to know that such products are intended for the use of an invention owned by somebody else. This is called indirect infringement of a patent” (Fišer-Šobot, 2010 p 12).

The Focus of the Court

In infringement cases the court tends to focus on 3 questions according to Pember & Calvert, 2011. First, “Is the copyright on the plaintiff’s work valid?” (p.532) When answering this question it is important to understand the origin of the copyright in order to make sure that it is not only original work but that the registration was executed properly so that the case can proceed knowing that the copyright is validated. Secondly, “Did the defendant have access to the plaintiff’s work prior to the alleged infringement?” (Pember & Calvert, 2011 p. 532)

If there was access to the plaintiff’s work and rational person could see where it may be easier to infringe upon a copyright if the elements infringed upon had been released to the general public. Lastly, “Are the two works the same or substantially similar?” (Pember & Calvert, 2011 p. 532) If the two works are comparable and very much alike, it would give more leeway in the case to corroborate the plaintiff’s argument.

Cost Analysis

In considering a legal battle one always thinks of the cost associated with the execution of a case. In an infringement suit, “The costs of defending a patent infringement suit may likewise lead defendants with otherwise legitimate defenses to settle” (UCLA Law Review, p.9). Infringement seems to boil down to good old fashioned greed. The plantiff’s greed in pirating the elements copyrighted by the defendant and the defendant in wanting what they feel entitled to because of patent and copyright laws.

Below you will see a breakdown of the equation for discovering if the cost of the suit would be worth it financially in the end.

From the defendant’s perspective, a settlement is economically desirable if:

S = The settlement amount that the plaintiff offers the defendant to
purchase a license and to thereby avoid litigation.
p = The probability {0 < p < I) that hoth (a) the plaintiffs patent
withstands challenges to the patent’s validity and enforceability and (h)
the defendant infringes the plaintiffs patent.
V = The damages that the plaintiff can recover from the defendant.
Cp = The defendant’s prospective cost of litigation.

This model indicates that alleged patent infringers will not challenge asserted patent rights if the proposed settlement is less than the expected loss incurred as a result of litigation. (UCLA Law Review, P.9 )

Litigation can take many years depending on the case so if the cost of the litigation is going to be less than the settlement amount it would not make sense to pursue a lawsuit for patent infringement. It would only make sense for a defendant to file charges if the settlement amount would be greater than the time, effort and money spent to pursue the case.

Current Legal Examples

In this instance of intellectual property, the internet goliath Google and programming company Oracle are at odds over the use of Java, a language system created by Sun systems, owned by parent company Oracle, in the Android phone and OS which is owned by Google. Oracle contests that the OS is infringing upon the patents for Java for which they own, while Google themselves questions the validity of the alleged patents all together.

Taking into account the flux of technological advances and demand for bigger and better achievements in this area, the importance of intellectual property and patents is the key to success for any company. Currently, one of the larger areas of technological advancement lies in the realm of smart phone technology. One company who has been involved in patent issues as of late has been internet giant Google. The founders of the highly successful search engine have branched out to other ventures, more specifically the realm of smart phones. Their intent has been to be a key competitor to the more popular product in the market: Apple’s Iphone. Through Google’s pursuit of overtaking Apple, they have come across problems in alleged patent infractions. Two current cases that have implications to the company are Google v. Oracle, and Apple v. HTC.