BUSA FINAL STUDY GUIDE
BUSA FINAL STUDY GUIDE BUSA 2106
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This 11 page Study Guide was uploaded by Vraj Patel on Monday April 18, 2016. The Study Guide belongs to BUSA 2106 at Georgia State University taught by Sherman in Spring 2016. Since its upload, it has received 35 views. For similar materials see Legal Environment of Business in Business Administration at Georgia State University.
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Date Created: 04/18/16
BUSA TEST 4 Chapter 8 • Patent Application o Filed with the PTO in Washington, DC o Contains a written description of the invention o Inventor should hire a patent attorney to assist in obtaining a patent for an invention o Patent number o Assigned to the invention if a patent is granted • Subject Matter that can be Patented o Patents are utility patents o Utility patent: Protects the functionality of an invention o Categories of innovation that can be patented and recognized by federal patent law: o Machines o Processes o Compositions of matter o Improvements to existing machines, processes, or compositions of matter o Designs for an article of manufacture o Asexually reproduced plants o Living material invented by a person • Requirements for Obtaining a Patent o To be patented, an invention must be: o Novel – New invention which has not been invented and used in the past o Useful – Invention with some practical purpose o Nonobvious – Invention is nonobvious • Patent Period o Since 2011, first-to-file rule for determining the priority of a patent o First party to file a patent on an invention receives the patent even if some other party was the first to invent the invention o Utility patents for inventions are valid for 20 years • Design Patent o Patent that may be obtained for the ornamental nonfunctional design of an item § Valid for 14 years • Benefits and Weaknesses o Benefits: Very strong protection, provides exclusive right to exclude others from making, using and selling an invention, protects the idea itself. o Weaknesses: Must meet high standards of novelty, usefulness and nonobviousness; often expensive and time-consuming, must disclose invention to the public • Copyright o Legal right that gives the author of qualifying subject matter exclusive right to publish, produce, sell, license, and distribute the work o Tangible writing § Writings that can be physically seen o Original work § Work must be the original work of the author to be protected under federal copyright law • Registration of Copyrights o Automatic Protection. Unnecessary to register copyright or use copyright notice © o But, copyright must be registered to file an infringement suit. o Registered with US Copyright Office • Copyright Period o Copyright Term Extension Act extended copyright protection § Individuals are granted copyright protection for their lifetime plus 70 years § Copyrights owned by businesses are protected for the shorter of either: • 120 years from the year of creation • 95 years from the year of first publication • Benefits and Weaknesses o Benefits: Prevents copying of a wide array of artistic and literary expressions; very inexpensive o Weaknesses: Protects only way an idea is expressed, not idea itself; hard to detect copying in the digital age • Copyright (cont.) o Fair use doctrine: Permits certain limited use of a copyright by someone other than the copyright holder without the permission of the copyright holder o Protected uses o Quotation of the copyrighted work o Use in a parody or satire o Brief quotation in a news report o Reproduction by a teacher or student of a small part of the work to illustrate a lesson o Incidental reproduction of a work in a newsreel or broadcast of an event being reported o Reproduction of a work in a legislative or judicial proceeding • Criminal Copyright Law o No Electronic Theft (NET) Act o Federal statute that makes it a crime for a person to willfully infringe on a copyright o Makes it a federal crime to reproduce, share, or distribute copyrighted electronic works o Movies, songs, software programs, and video games o Criminal penalties for violation include imprisonment for up to five years and fines of up to $250,000 • Trade Secrets o Product formula, pattern, design, compilation of data, customer list, or other business secret o Uniform Trade Secrets Act § Gives statutory protection to trade secrets § For the lawsuit to be actionable, defendant must have acquired a trade secret through unlawful means § Owner is obliged to take all reasonable precautions to prevent that secret from being discovered by others o Precautions § Fencing in buildings, placing locks on doors, hiring security guards, and the like o Reverse engineering § Used by competitors to lawfully discover a trade secret § Taking apart and examining a rival’s product or re-creating a secret recipe o Economic Espionage Act (EEA): Makes it a crime for any person to convert a trade secret for his or her own or another’s benefit § Knowing or intending to cause injury to the owners of the trade secret § Enacted to address the ease of stealing trade secrets through computer espionage and use of the Internet § Provides severe criminal penalties § Imposes prison terms on individuals of up to fifteen years per criminal violation o Benefits: Very broad protection for sensitive, competitive information; very inexpensive o Weaknesses: No protection from accidental disclosure, independent creation by competitor or disclosure by someone without a duty to maintain confidentiality • Trademark o Mark: Trade name, symbol, word, logo, design, or device used to identify and distinguish goods of a manufacturer or seller or services of a provider o Protects the owner’s investment and goodwill in a mark o Prevents consumers from being confused about the origin of goods and services • Registration of a Mark o File with the PTO o Application pending with the PTO, registrant cannot use the symbol ® § ®: Symbol that is used to designate marks that have been registered with the U.S. Patent and Trademark Office o Registrant can use the symbol TM for goods or SM for services during the application period § TM: Symbol that designates an owner’s legal claim to an unregistered mark that is associated with a product § SM: Symbol that designates an owner’s legal claim to an unregistered mark that is associated with a service • Distinctiveness or Secondary Meaning o Features of a mark to qualify for federal protection § Distinctive: Being unique and fabricated § Acquire a secondary meaning • Secondary meaning: Brand name that has evolved from an ordinary term o Distinctive § Microsoft § Starbucks § Imonics o Secondary Meaning § Apple § Windows § You’re Fired § That’s hot • Generic Names o Term for a mark that has become a common term for a product line or type of service and therefore has lost its trademark protection § If a word, name, or slogan is too generic, it cannot be registered as a trademark and anyone can use it • Required Steps o Only need to use mark in commerce § Place mark on goods (or their containers, tags or labels) that are sold o In US, first user of distinctive mark gets priority o However, filing with US PTO is desirable to gain stronger protection o Requires separate filings in each foreign jurisdiction. But Madrid Protocol allows registrant to get simultaneous protection in all 60+ signatory countries • Duration o Registration is good for 10 years and can be renewed for unlimited 10 year periods o If not registered, valid for as long as mark is not abandoned and steps are taken to police its use • Benefits and Weaknesses o Benefits: Protects marks that customers use to identify a business; prevents others from using confusingly similar marks. o Weaknesses: Can be costly if multiple overseas registrations are needed. • Domain Name o A unique name that identifies an individual’s or company’s Web site o Generic top level domains = .com, .net, .org, .edu, .gov, .int, and .mil. Expanded to include .aero, .biz, .info, .coop, .museum, .name, pro., etc • Required Steps / Duration o Register with Internet Corporation for Assigned Names and Numbers o Immediate international validity o No separate registration by industry o Annual renewal • Infringement o ICANN’s mandatory arbitration rules o 1999 Anticybersquatting Consumer Protection Act o Illegal to register a domain name, (2) if name is identical or confusingly similar to a trademark and (2) with bad faith intent to profit from the mark • Examples o Worldwrestlingfederation.com o Madonna.com o Veronica.com o Peta.org o Ballysucks.com Chapter 19 • Complaint Process o Person discriminated against in the workplace must file a complaint with the EEOC within 180 days. o If a violation is found, EEOC may sue the employer or arrange mediation. o If a violation is not found, EEOC will issue a right to sue letter to the complainant • Lilly Ledbetter Fair Pay Act of 2009 o Federal statute that permits a complainant to: § File an employment discrimination claim against an employer within 180 days of the most recent paycheck violation § Recover back pay for up to two years preceding the filing of the claim if similar violations occurred during the two-year period • Title VII of the Civil Rights Act of 1964 o Protected classes § Race § Color § National origin § Sex § Religion o Covers decisions regarding § Hiring § Promotion § Demotion § Payment of salaries, wages, and fringe benefits § Dismissal § Job training and apprenticeships § Work rules § Any other term, condition, or privilege of employment • Title VII: Race, Color, National Origin o Title VII does not contain a definition of race, but EEOC says it includes “discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features.” o Includes African American, Caucasian, Asian, Native American, etc. o There can be overlap with national origin. • National Origin Discrimination o Employment discrimination against a person because of his or her heritage, cultural characteristics, or the country of the person’s ancestors o Includes discrimination against: § Employees or job applicants of a particular nationality § Persons who come from a particular country § Persons of a certain culture § Persons because of their accents • Religious Discrimination o Discrimination against a person because of his or her religion or religious practices o Reasonable accommodation for religion o Under Title VII, an employer’s duty to reasonably accommodate the religious practices of its employees if doing so does not cause an undue hardship on the employer o Title VII permits religious organizations to give preference in employment to individuals of a particular religion • Title VII: Sex Discrimination o Discrimination based on gender or gender identity. o Discrimination based on "pregnancy, childbirth, or related medical conditions.“ o Quid pro quo • Title VII: Sexual Harassment o EEOC defines sexual harassment as § “Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” § Hostile work environment • Severity, pervasiveness & frequency of harassing conduct • Age Discrimination in Employment Act of 1967 o Protects individuals 40 + years old • Americans With Disabilities Act of 1990 (ADA) o Disability: Person who has a physical or mental impairment that substantially limits a major life activity o Qualified individual: Can perform the essential functions of the job that a person desires or holds, with or without reasonable accommodation o Limits employer questions o Title I of the ADA limits an employer’s ability to inquire into or test for an applicant’s disabilities o Reasonable accommodation for disability o Under Title I of the ADA, an employer’s duty to reasonably accommodate an individual’s disability if doing so does not cause an undue hardship on the employer o Undue hardship o Actions that would require significant difficulty or expense o Employers are not obligated to provide accommodations that would impose an undue hardship • ADA Exclusions o Exclusions from disability protection: § Sexual preference, compulsive gambling, kleptomania, pyromania § Inability to perform essential job functions § Employee poses direct threat to others, not self • The ADA Amendments Act of 2008 o Sept. 2008, Bush signs ADA Amendments ACT which overturns recent Sup. Ct rulings. The ACT: § Requires that disability be broadly construed. § expands the definition of major life activity to include (1) additional activities such as reading, bending and communicating and (2) major bodily functions such as immune system, circulatory, respiratory, neurological, and reproductive functions. § States that corrective measures other than “ordinary eyeglasses or contact lenses” shall not be considered in determining disability. Chapter 20 § State Workers’ Compensation Laws o Compensates workers and their families if workers are injured in connection with their jobs o Workers’ compensation is an exclusive remedy § Occupational Safety and Health Act o Promotes safety in the workplace o OSHA has regulations to enforce the safety standards established by the act o Specific duty standards o General duty standard -- working conditions “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” o OSHA is empowered to inspect places of employment for health hazards and safety violations o Fines vary by seriousness of violation and can include criminal penalties § Fair Labor Standards Act o Prohibits child labor o Establishes overtime pay o Establishes minimum wage o July 2009 $7.25 § Overtime Pay o Employer cannot require nonexempt employees to work more than 40 hours per week § Unless they are paid overtime pay of one-and-a-half times their regular pay for each hour worked in excess of 40 hours that week § Who is Nonexempt? o Less than $23,660 annually ($455 per week) automatically nonexempt o $100,000 annually (including commissions and bonus) automatically exempt o DOL is proposing to raise the levels in mid-2016 to $970 per week/$50,440 per year and $122,148 per year. o In between but paid on salary basis– depends on types of duties performed § Testing of Employees o Drug Testing § Public Employees § Private Employees: Varying state standards o Polygraph testing and EPPA of 1988 § Prohibited unless employer has reasonable suspicion that employee has engaged in conduct “injurious to business” § Health Screening and Genetic Testing o Genetic Information Non-Discrimination Act 0f 2008 o GINA prohibits ER from making employment decisions based on genetic testing results. § Legal Issues with Social Media o Labor and Employment § Hiring and firing § Monitoring § Wage and hour § Harassment § Confidentiality and Privacy § E-discovery o Commercial Issues § Advertising/brand management § Copyright and trademark § Regulated industries o Online Persona Can Wreck Your Job Search § HR personnel have found the following on Facebook, Google, etc.: § My interests include “smokin’ blunts, shooting people and obsessive sex.” § “I like to blow things up.” § An essay written by the candidate called “Lying Your Way to the Top” published on a web site for college students. (candidate denied job bc of this post) § “Final tomorrow. See ya in class for some good ol’ cheating.” o Guard Your Virtual Reputation § Est. 83% of recruiters research candidates online; 43% have eliminated a candidate based on results. § Review your pages on Facebook, etc. and remove photos or text that may be inappropriate to show ER’s. § Apply privacy settings that can limit access to your pages. § Be smart about what you post. § Google yourself, and set a Google alert for your name on google.com/alerts, to see what is posted about you. o E-Discovery § All social media is backed up and retained except test messages. • Facebook’s policy: we do not ever delete anything. § All social media is discoverable by subpeona, even if marked with a privacy setting. • YouTube, Facebook, Twitpic policy: you own the content; we get license to use it and sell it, even if marked private. • Flickr and Twitter: you own photos and what you tweet. BUSA TEST 4 TERMS: Patent: a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention. Novel: New invention which has not bee n invented and used in the past Useful: Invention with some practical purpose Nonobvious: Invention is nonobvious First to file rulFirst party to file a patent on an invention receives the patent even if some other party was the first to invent the invention Copyright: Legal right that gives the author of qualifying subject matter exclusive right to publish, produce, sell, license, and distribute the work US Copyright Office: You can register your copy right at the US Copyright Office Copyright infringement : copyright must be registered to file an infringement suit, Federal statute that makes it a crime for a person to willfully infringe on a copyright Fair Use Doctrine: Permits certain limited use of a copyright by someone other than the copyright holder without the permission of the copyright holder No Electronic Theft Act :Federal statute that makes it a crime for a person to willfully infringe on a copyright. Makes it a federal crime to reproduce, share, or distribute copyrighted electronic works. Trade Secret: Product formula, pattern, design, compilation of data, customer list, or other business secret Economic Espionage Act: Makes it a crime for any person to convert a trade secret for his or her own or another’s benefit Trademark: Mark: Trade name, symbol, word, logo, design, or device used to identify and distinguish goods of a manufacturer or seller or services of a provider Distinctive meaning: : Being unique and fabricated Secondary meaning: Brand name that has evolved from an ordinary term Generic mark: Term for a mark that has become a common term for a product line or type of service and therefore has lost its trademark protection Trademark infringement: Illegal to register a domain name, (2) if name is identical or confusingly similar to a trademark and (2) with bad faith intent to profit from the mark Worker’s Compensation Act: Compensates workers and their families if workers are injured in connection with their jobs Occupational Safety and Health Act: Promotes safety in the workplace, OSHA has regulation General Duty and Specific Duty standards: working conditions “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees Fair Labor Standards Act: Prohibits child labor, Establishes overtime pay, Establishes minimum wage Immigration Reform and Control Act: The purpose of this legislation was to amend, revise, andreform/re-assess the status of unauthorized immigrants set forth in the Immigration and Nationality Act. EEOC: Equal Employment Opportunity Commission Right to Sue letter If a violation is not found, EEOC will issue a right to sue letter to the complainant Title VII of the 1964 Civil Rights Act: discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features Race discrimination: practice of treating individuals differently because of their race or color National origin discrimination: Employment discrimination against a person because of his or her heritage, cultural characteristics, or the country of the person’s ancestors Gender discrimination: Discrimination based on gender or gender identity. Discrimination based on "pregnancy, childbirth, or related medical conditions.“ Sexual harassment: Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature Quid pro quo: a favor or advantage granted or expected in return for something. Hostile work environment: A hostile work environment is a form of harassment. Religious discrimination (including duty to accommodate absent undue hardship): an employer’s duty to reasonably accommodate the religious practices of its employees if doing so does not cause an undue hardship on the employer Age Discrimination: Protects individuals 40 + years old Age Discrimination in Employment Act: Protects individuals 40 + years old Americans with Disabilities Act (including duty to accommodate absent undue hardship) Disability: an employer’s duty to reasonably accommodate an individual’s disability if doing so does not cause an undue hardship on the employer undue hardship
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