Several media outlets report that Jesse Braham (real name Jesse Graham), an out of work and seemingly unknown musician, has filed a federal lawsuit Taylor Swift alleging that she stole the lyrics for her hit song “Shake It Off” from his song “Haters Gonna Hate.” In his complaint, Braham asserts “if Jessie Braham did not write the song ‘Haters Gone Hate,’ then Taylor Swift would not have written the song ‘Shake It Off.'”
Maybe it’s because I’m a huge Taylor Swift fan, but I believe that’s a very bold statement for Mr. Braham to make. Ms. Swift, while recycling heartbreak, her manic-pixie-dreamgirl persona, and those faces she makes whenever she wins an award, (you know it– the “I-can’t-believe-I-won-how-shocking!” look) probably didn’t need a huge deal of inspiration in rearranging five words to get her point across. Our job as attorneys, however, isn’t to chatter about the original songwriting prowess of our favorite blonde twenty-something, but to break down the legal argument behind the claim.
A few weeks ago, I discussed the legal significance of patent markings on products sold in the United States. That article raised a more basic question among some readers: “What is a patent?” In this post, I discuss the reason the United States issues patents, how to determine whether your invention is patent eligible, and how to understand the different parts of a United States Patent.
The American Founders decided to grant patents in order to spur economic growth and to encourage inventors to reveal their discoveries to the public. Thus, Article I, section 8, clause 8 of the United States Constitution authorizes Congress to allow for patent rights, or limited time monopoly rights for inventions, stating that Congress has the power
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Have you ever seen a patent notice like “U.S. Patent Pending” or “U.S. Patent No. 1234567” and wondered about its implications? Could it be used to scare off potential competitors, or does it have some deeper legal importance? Under federal law, which governs all things patent, patent marking actually plays an important role in patent infringement suits. This article reviews the reasons for marking a product with a patent, the kinds of markings that are legally sufficient under the law, and the practical implications for patent owners and possible infringers alike.
A patent marking is legally relevant. Not just a deterrent, it serves to provide constructive notice to a potential infringer that the item is patented or patent pending. This means that the law imputes notice to an infringer, even if the infringer never actually saw the patent marking. Notice of some kind is required under United States Code, Title 35, section 287 before a patent holder may bring an infringement action. There are two kinds of notice: actual and constructive. Actual notice occurs when someone tells an infringer about their infringement, like, for instance, when a patent holder sends a demand letter. Constructive notice occurs when a patent holder properly marks their patented product. If infringement occurs after either of these events, the infringement is actionable in federal court.