subject to far more exemptions as well as statutory licenses. Copyright law protects only against copying and distribution of protected expression, some public performances or displays of copyrighted works, and the unauthorized creation of derivative works. Thus, independent creation of a copyrighted work does not violate the Copyright Act, nor does copying the unprotected elements of a work, such as facts, ideas, or material that is unoriginal or in the public domain. Although the United States Copyright Office registers works, it does not, unlike the Patent Office, conduct a search of the prior art or make any assessment of validity other than to ensure a modicum of creativity. The Copyright Office functions largely as a recording office. Registration today merely records a presumptively valid copyright.

Patent law offers the possibility of a limited period of exclusive rights to encourage research and development aimed at discovering new processes, machines, and compositions of matter, and improvements thereof. Obtaining a patent involves a detailed government examination to assess protectability. To obtain a utility patent, an inventor must submit an application to the Patent and Trademark Office (PTO) meeting five requirements: patentable subject matter, usefulness, novelty, nonobviousness, and adequate disclosure. Although the utility threshold is low, the novelty and nonobviousness standards are more substantial, and the PTO conducts an independent review of the application to ensure that it meets these requirements.

If the PTO grants a patent, the inventor obtains rights that can be substantially broader than those encompassed by a copyright—a fundamental difference between the two systems. Whereas patents protect the claimed invention whether or not the accused device, manufacture, composition of matter, or process was copied by the defendant, copyright law only protects against copying. Therefore, truly independent creation of the copyrighted work does not violate copyright law. Furthermore, others are free to use the unprotected elements of a copyrighted work. They may also make “fair use” of a copyrighted work.

In contrast, a patent grants its holder the exclusive rights to make, use, and sell the innovation, regardless of how another comes by the knowledge. The patent grant is nearly absolute within the boundaries of the patent’s claims, barring even those who independently develop the invention from practicing its art.2 Infringement will be found where the

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2The America Invents Act, passed in 2011, establishes prior user rights. See 35 U.S.C. § 273. In addition, in the aftermath of the Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), injunctive relief is not longer routinely awarded in patent cases. Courts now apply an equitable balancing test that can result in a court-determined permanent damage award.



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