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Title : INTELLECTUAL PROPERTY: PROTECTING THE
INTELLECT OR THE PROPERTY?
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NUJS Kolkata - The NUJS Law Review

2013

Article

INTELLECTUAL PROPERTY: PROTECTING THE INTELLECT OR THE PROPERTY?

Pervin Rusi Taleyarkhan 1

Subject: Intellectual Property

Keywords: Intellectual Property; Misappropriation; Invention; U.S. Constitution; Uniform Trade Secret Act

Legislation: Uniform Trade Secret Act

U.S. Constitution

*321

I. INTRODUCTION

Price is what you pay, value is what you get. 2

The ten simple words that appear above summarize multi-billionaire investor Warren Buffet's philosophical
stance on investing. This philosophy emphasizes that there is a crucial difference between the price one charges
for something and its true value. 3 That is, in the investment world it is important to recognize the reality that stock
market prices are both volatile and rarely accurate, a natural result of humans being prone to regularly getting
"carried away by periods of 'irrational exuberance' or 'bouts of panic'." 4 Contrarily, the value of the company
largely remains stable, mainly because when purchasing *322 a share of a company, the investor buys into the
assets of the business, the value of which ultimately depends on how the business itself is structured. 5

This powerful notion of distinction between price and value can be readily applied to the world of intellectual
property ('IP'). Specifically, the process of creating an IP (which in this paper can be in the form of individual or
group talent, time commitment, energy, labor, and even financial expenditure - and is thus to be distinguished
from patent law's 'patentable processes'), is related to Warren Buffet's reference to the price 'paid' for the IP. Mr.
Buffet's concept of 'value' is analogized in IP to the value placed on the invention 6 or creative work (that is, the IP
itself ). Just as in Mr. Buffet's philosophy, where the price paid for a share in a company should not be
considered indicative of the value of the company (and one must thus analyze the business itself to gain a sense
of its value), so too is the process for creating an IP rarely a true or even fair indicator of the protection the IP
deserves.

There is little doubt that IP plays a critical role in most nations' economies and heavily impacts their standards of
living. Indeed, IP has been described as the economic exploitation of 'knowledge and information' 7 .Furthermore,
"[i]ntellectual capital is recognized as the most important asset of many of the world's largest and most powerful
companies". 8 In order to understand the reasoning behind so many societies' recognition of intellectual products
as protectable 'property' and thus answer the oft-posed policy-based question of exactly what we 'should be'
protecting (i.e., the creation itself or the process of creating it), it is necessary to begin the analysis by paying due
credit to the source of all IP: the intellect.

After the fundamentals of the mind's creative processes are considered, it will become clear that, analogous to
Warren Buffet's investment philosophy, arriving at an IP is effectively issuing a 'share' in IP's business of
exploiting knowledge and information. Thus, the IP's value is determined by the quality of such knowledge or
information embodied in a creative work or an invention itself, and not necessarily by the process utilized to arrive
at it. 9

*323

This paper explores the reasoning behind the argument which seeks to exclude "the process of creating or
inventing" from determining legal protection of the creation or invention. Accordingly, Part II of this paper begins
03/06/2019 Delivery | Westlaw India Page 3

by analyzing the ground from which all IP sprouts, the human mind, and how this supports the argument for a
process-product distinction in IP protection. Part III follows by summarizing how the four main bodies of IP law 10
achieve the ultimate goal of promoting progress in science and useful arts by awarding protection to the value
created rather than the process of creating it. Finally, Part IV closes with an overview of the main points covered
herein, and leaves the reader with a sound takeaway message derived from Warren Buffet's investment
philosophy, customized for application to the IP realm.

II. INTELLECTUAL PROPERTY'S COMMON ROOTS: ALL IP STARTS AT THE SAME PLACE

When determining whether one's process (i.e., mental approach or methodology) in arriving at an intellectual
property should play a role in determining its protectability, it is necessary to begin the discussion with an
analysis of where IP ultimately begins.

A. THE ULTIMATE ORIGIN OF ALL INTELLECTUAL PROPERTY: THE HUMAN BRAIN

The human brain "is the most complex organ in the human body," which produces "every thought, action,
memory, feeling and experience of the world". 11 Physical evidence of the astonishing complexities in the
interactions of the mind's biological components is readily apparent in each individual's strengths and
weaknesses. 12 These strengths and weaknesses are translated into *324 how humans respond to problems
and how each human is capable of developing unique solutions to those problems. 13 Accordingly, some
solutions are found through a painstaking process of trial and error, while others may be seemingly effortlessly
and sometimes 'accidentally' discovered. As an example, this principle can be applied to the process of creating
an artistic or other original work. Some people are considered blessed, for instance, with a talent for painting
portraits. On the other hand, others may struggle to accomplish that same task, and may not even be able to
create a comparable work at all. Still, these same individuals who exhibit weaknesses in one area or field may
find a "balance in talents" by having superior strength in another. 14 This rich variety of abilities grant the world
great wealth in the power of diversity in the ways and methods in which problems can be solved and in which
creativity can be manifested.

Examples of the differing styles of problem solving and creativity are abound in the production of works of various
kinds. In the musicians' world, focused repetition (i.e., practice), inspiration, and even one's unique perspective
on life are attributed as governing how a song is written (and even how it is played and sung). 15 Regarding
paintings, it took Michelangelo four years of labor and planning to complete his famous work on the Sistine
ceiling in Italy, 16 and yet, as historians agree, Leonardo Da Vinci also spent four years painting *325 the
celebrated, yet much-smaller-in-size, Mona Lisa. 17 In the inventive sector, the glue on the widely used
'POST-IT® Notes' was not even considered for its present purpose until six years after the glue itself was
originally formulated for its then-failed use as 'super glue'. 18 It took a so-called 'flash of inspiration' to recognize
its potential as the ideal glue for temporary paper fixation on an object. At the other end of the spectrum as far as
labor and time required to achieve a useful result, Thomas Edison and his team of researchers famously arrived
at the improved, long-lasting light bulb after experimenting with thousands of different types of filaments to
achieve the desired glow and longevity. 19

Given the above examples, it would be unfair and indeed highly inaccurate to, for example, claim that art lovers
gain more pleasure from viewing Leonardo Da Vinci's Mona Lisa than Michelangelo's Sistine ceiling painting
simply because more work (or process) per unit surface area of painting and more agony in getting the work of
art 'just right' was (arguably) involved in Da Vinci's work. Both of these artists invested a great deal of time and
effort into their creative works, and society values them immensely, regardless of the time and effort invested per
unit area of painted surface. Similarly, sales of both POST-IT® Notes and light bulbs have hit the same order of
magnitude (i.e., $Multi-Billions USD), 20 and consumers are likely to be completely unaware that one innovation
was the result of a "flash of genius" process while the other was the result of a painstaking trial-and-error
process. If there are so many ways to manifest a product of the mind, legal protection of those solutions cannot
and should not be awarded based on the process one takes to arrive at them.

B. CREATIVITY IN INTELLECT SUPPORTS A VALUE-BASED PROTECTION APPROACH

History has shown that the most extraordinary discoveries and works have come from truly surprising sources.
Take grapheneas an example. Graphene is a transparent, one-atom thick layer of carbon that is remarkably
*327 "[one] hundred times stronger than the strongest steel". 21 Its applications are no less extraordinary.
Graphene can be a critical component in manufacturing faster computers, more stable biosensors for diagnosing
diseases, lighter satellites, and safer cars. 22 Prior to 2004, few scientists believed such a material could be
produced at all, even with the most sophisticated equipment and brilliant scientific minds working to achieve this
goal. 23 Then, two physicists surprised the world by discovering graphene using materials found in almost every
household in the developed world: scotch tape and pencil lead. 24 These two simple ingredients held the key to
the discovery of what has been described as the thinnest and strongest material in the universe. 25

To be sure, the key components of all noteworthy achievements, hard work and persistence, played a critical role
in discovering graphene as well. But what graphene's Nobel Prize-winning discoverers claim as uniqueness in
their approach (or process) to their discovery is a research strategy that specifically focuses on "unexplored
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area[s] of research". 26 Just think: if IP protection was based even in part upon one's process (e.g., labor, time,
etc.) it takes no stretch of the imagination to foresee the legal chaos and unpredictability that would result if
courts and agencies took into account the unique, non- traditional research approaches used to arrive at this
monumental discovery. 27

To the above point, some may argue that placing too much emphasis on results rather than process would in
effect provide a disincentive to progress by slowing incentives for achieving more efficient and economical
'processes'. This is simply not the case because such an argument fails to take into account the fact that there
are other forces in play that serve to incentivize innovation and creativity. Broadly speaking, these are economic
forces. Factors such as competition and the quest for market advantage, an in-depth discussion of which goes
beyond the scope of this paper, provide the necessary *327 encouragement for innovation and optimization in
efficiency in order to, among other goals, gain in financial prominence and competitive prestige. 28

It follows then, and again, if there are so many ways in which a solution can be achieved, and if the world's most
perplexing mysteries can be solved by means ranging from extraordinarily difficult to unimagined and simple
means (as shown in the graphene discovery example above), why should protection of those solutions be
determined by the processes involved in arriving at them, when nature itself proves there is no 'fixed equation' for
such achievements? The answer is, simply, that it should not.

III. LEGAL RECOGNITION OF THE VARIED APPLICATION OF BRAIN POWER BEHIND IP:
PATENTS, COPYRIGHTS, TRADEMARKS, AND TRADE SECRETS

It has been demonstrated from the discussion above that society can benefit from inventions and creative works
regardless of the amount of time and energy that has been put towards converting ideas into reality, and thus the
process involved in arriving at an IP can be largely indeterminate of the IP's ultimate value to society. The focus
of IP protection, therefore, should rest on the value of the creation or invention, and not on the process used to
arrive at it. The United States' IP policies, for example, regard "[IP] rights as comparable to rights to physical
property", 29 and provide an excellent example of protection focused on the IP rather than the process of creating
the IP. The four main bodies of IP law in the vast majority of World Intellectual Property Organization ('WIPO')
member states, 30 which are patent law, copyright law, trademark law and trade secret law, and their role in
furthering the notion that the IP itself deserves protection and not the road travelled to arrive at it, are
summarized below.

*328

A. PATENT LAW: PROTECTING NEW, USEFUL AND NON-OBVIOUS INVENTIONS

United States patent law (and copyright law as well, which is discussed below) traces its roots back to the U.S.
Constitution, which grants Congress the power to pass laws to grant time-limited monopolies for certain types of
works in order to "promote the progress of science and the useful arts". 31 "The economic philosophy of
compensating the inventor for sharing his invention with the public was the primary reason for the Patent and
Copyright Clause in the U.S. Constitution." 32 It is important to note that the focus is on the invention, 33 and the
inventor's process of arriving at the invention - be it painstaking trial-and-error or a "flash of genius" - is largely
immaterial for obtaining protection. Similar recognition of patentable inventions is afforded by other WIPO
member states.

A patent itself is defined by WIPO as "a document, issued, upon application by a government office (or a regional
office acting for several countries), which describes an invention and creates a legal situation in which the
patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of
the owner of the patent". 34 Further, "'[i] nvention' means a solution to a specific problem in the field of
technology". 35 Of note is the fact that there is no mention of the approach (e.g., experimentation, trial-and-error,
etc.) the inventor took to arrive at the invention. Rather, the protectability of an invention is dependent on whether
it is something that valuably promotes progress in science and the useful arts, i.e., encompasses "patentable
subject matter, [has] industrial applicability (usefulness), and possesses novelty, and it must exhibit a sufficient
'inventive step' (be non-obvious)". 36 This creates recognition for the inventor's contribution, while at the same
time paying respect to the demonstrable fact that everyone processes information differently and ultimately it is
the value that the invention gives to society that is protectable, and not the process used to arrive at it.

It would be appropriate at this juncture to point out that the argument for focusing on the invention itself should
not be interpreted to imply that sheer hard work, struggle, and obstacles overcome to arrive at the invention are
*329 not relevant at all. In fact, they are indeed recognized, and in very significant ways (albeit not necessarily in
the legal sense). For example, when a scientist discovers a new drug or an engineer designs a novel sensor for
detecting radio- active materials in airports, acclaim and recognition for the work stem from sources outside the
legal arena. Regardless of a patent being granted, the inventor gains a high level of prestige, not only in his or
her own professional community but often in the public realm as well. The latter, of course, is dependent upon
the extent to which the invention is exposed, recognized, and valued. Newspapers may report the inventor's
efforts, and other interested sources may document the inventor's persistence and his or her triumph over the
odds. The inventor may choose to write technical papers for publication in prestigious journals in his or her field
03/06/2019 Delivery | Westlaw India Page 5

of expertise. Professional conferences in the field of invention will seek to publicize the work as well. Further, the
inventor or his invention may be the subject of commercialization efforts, the marketing of which may further
exploit the inventor's inventive process used to arrive at his invention. The list goes on and on. In short, the
'process' or approach of arriving at the patentable invention are already justly given their due credit in ways that
do not and, because of the above-discussed inherent lack of uniformity of mental processes, should not require
legal recognition, which generally favors a policy of simplicity, uniformity, and predictability. 37

B. COPYRIGHT LAW: PROTECTING ORIGINALITY IN TANGIBLE CREATIVE WORKS

"Copyright law is a branch of that part of the law which deals with the rights of intellectual creators". 38 Further,

"[c]opyright law, however, protects only the form of expression of ideas, not the ideas themselves. The creativity
protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors, shapes
and so on. Copyright law protects the owner of rights in artistic works against those who 'copy', that is to say
those who take and use the form in which the original work was expressed by the author." 39

*330

Regarding the process and mode of creation of copyrightable works, here too there are avenues for non-legal
recognition of the 'process' involved in creating an original work. For example, if a painter creates a new, unique
painting, he or she will gain in popularity, and will perhaps even establish social and financial prominence. Here
too, newspapers will undoubtedly publicize the author's success and document his or her road to prominence.
Television stations will carry stories commemorating the author's work, and in all likelihood will also document the
'story' behind the creation. The painter may even receive offers to purchase the painting, and the painter's
struggle or the amount of time taken to create that painting may dictate what the "fair market value of the
painting" really is when he or she decides whether to accept a particular offer. If the work is unique enough, or
even pleasing enough despite its uniqueness, scholars specializing in that particular style of painting may write
articles describing the painter's work, which might include notes on the 'inspiration' that guided the painter in
creating this work. The sheer randomness behind public appeal and subjectivity 40 involved in popularity trends in
this sector of IP serve to negate any necessity for a law based policy that affords legal protection that is
determined by the author's approach used to arrive at a particular result.

C. TRADEMARK LAW: PROTECTING THE CONSUMER FROM DECEPTION

Trademarks trace their roots to the ancient world, where craftsmen cleverly devised symbols unique to
themselves in response to a growing need to establish the source of their goods. 41 With industrialization, the
importance of trademarks gained widespread recognition as market-oriented *331 economies began to grow. 42
Since competing manufacturers and traders could offer consumers great varieties of goods in similar categories,
and the quality and price (among other characteristics) could be equally varied, it became clear that "consumers
need to be given the guidance that will allow them to consider the alternatives and make their choice between
the competing goods". 43 As a result, "the goods must be named,[and the] medium for naming goods on the
market is precisely the trademark". 44

In trademark law, the idea of the 'price paid' (that is, the approach or methodology) for achieving the IP, i.e., the
trademark, is somewhat relevant, though indirectly, to the value of the mark. This is because when consumers
are enabled:

"to make their choice between the various goods available on the market, trademarks encourage their owners to
maintain and improve the quality of the products sold under the trademark, in order to meet consumer
expectations. Thus trademarks reward the manufacturer who constantly produces high-quality goods, and as a
result they stimulate economic progress." 45

So here, the process for arriving at the IP is relevant in determining its protectability. For the trademark owner to
maintain his right to the mark, it must continually function to "distinguish the products or services of one
enterprise from the products or services of other enterprises." 46 The mark must also not have a 'misleading
character', or "violate public order or morality". 47 These 'protectable' features of the mark must be maintained by
the trademark owner in order to maintain legal protection of the mark. The true test for ascertaining the
effectiveness of a trademark is to see whether the consumer effectively associates the mark with the source of
the goods or services. 48

While it is clear there is indeed a naturally requisite process involving effort and ingenuity incumbent on the
trademark owner in order to maintain protectability for his or her trademark, aside from the requirement that the
mark be 'distinguishable', the rest of the effort is focused on maintaining *332 consistency in, or even increasing,
the quality of the products or services that are provided (which is the requirement of trademark law to secure and
maintain protection, and which defines the value of the mark). 49 This is, quite naturally and coincidentally, in the
owner's best economic and social interests. So here again, the process of arriving at the IP (i.e., the
distinguishing mark itself ) is appropriately irrelevant in determining its protectability as an IP. The trademark
could have been painstakingly arrived at, both physically and financially, but if it does not perform its intended
function of allowing consumers to associate the mark with its owner, then no amount of effort invested in coming
03/06/2019 Delivery | Westlaw India Page 6

up with mark can properly serve to afford legal protection to the mark.

D. TRADE SECRET LAW: LEGAL RECOGNITION OF A COMPETITIVE EDGE

Trade secret law is an interesting IP sector for discussing whether the processes involved in arriving at an IP
should determine the IP's protectability. As will be discussed below, trade secret protection is generally
recognized as depending on both the process and value of the trade secrets. However, the value-focused
protection model overrides here as well.

"Trade secrets are protected against unauthorized use and disclosure by various statutory means and these
provisions vary in each country". 50 Depending on the country, trade secrets often involve contract law, tort law, or
both, and "a legal definition of a trade secret rarely exists". 51 In general, however, protection of trade secrets is
largely dependent on several factors, including:

"[1] the extent to which the information is known to the public or within a particular trade or industry, [2] the
amount of effort and money expended by the trader in developing the secret information, [3] the value of that
information to the trader and to his competitors, the extent of measures taken *333 by the trader to guard the
secrecy of the information, [4] the value of that information to the trader and to his competitors, [5] the extent of
measures taken by the trader to guard the secrecy of the information and [6] the ease or difficulty with which the
information could be properly acquired by others." 52

From the above list of factors, it is of importance that in trade secret law, both the value of the information and the
process (i.e., effort and money expended in developing the trade secret information) are explicitly at play.
Further, when the above factors are combined with the extra subjective requirement that the "trader involved
must have a considerable interest in keeping certain information as a trade secret", 53 it is clear that here, the
price paid or the process used to arrive at an IP does play a role in determining its value or protectability. 54
However, a key difference between trade secret law and the other three forms of IP protection is that the
information that is the subject of a trade secret is only protectable to the extent that it remains a secret, and trade
secrets themselves are not subject to the fully exclusive rights of industrial property law. 55 So if a competitor
discovers the trade secret, or if the trade secret is somehow disclosed, 56 the owner of the former trade 'secret'
may be entitled to legal damages. 57 But the trade secret itself may no longer get *334 protection, for it is no
longer a secret, as the principle that "the mere exploitation of another's achievement is consistent with the
principles of a free market system" 58 generally governs courts' rulings. Incidentally, this also reflects what is often
considered a dilemma that individuals face in deciding whether to pursue IP protection of their invention i.e.,
whether to fully disclose in exchange for time-limited protection and 'guaranteed' exclusivity or withhold
disclosure and maintain a trade secret potentially indefinitely. 59 Therefore, to an extent, the process or 'price paid'
for a trade secret does indeed determine its 'value', but once the secret is discovered (or otherwise when it is no
longer a secret), the amount of work or effort expended to acquire that IP may no longer be relevant for
maintaining protection of that trade secret.

IV. CONCLUSION: "PROCESS IS WHAT YOU DID, VALUE IS WHAT YOU PROTECT"

The preceding sections serve to demonstrate that, with the limited exception of trade secrets, it is far more
accurate policy-wise to base protection of an IP upon the value of the IP itself, and to not factor in the process of
having arrived at that IP. This argument is not meant to downplay the value of hard work, inspiration, and in some
cases, inexplicable luck in arriving at an IP. These processes are usually recognized one way or another by way
of media attention, prestige in the author or inventor's field, and economic success. Further, various routes and
faculties of one's intellect can be enlisted to create, develop, or invent the IP. Therefore, an attempt to codify or
objectively dictate what kinds of intellectual approaches are qualified for heightened legal (IP) protection would
lead to widespread uncertainty in the application of such inevitably subjective standards, and might even
discourage people from boarding on certain trains of thought for fear that it will not result in any meaningful
protection of any resulting IP. This will inevitably result in failure to capture the true value of the IP. Therefore,
applying Warren Buffet's investment philosophy of a price-value distinction to process versus protection in
intellectual property law, one can conclude that the "Process is what you did, Value is what you protect".

6(2) NUJS L. Rev. 321 (2013)

1.
Attorney in Indiana, U.S.A., practicing in the field of intellectual property law and business law. She earned
her Juris Doctorate from the Indiana University Robert H. McKinney School of Law. She also holds a
degree in chemical engineering from Purdue University. This paper was the winner of the 1st 'Pondering
Intellectual Property' Essay Competition organized by Spicy IP, MHRD IP Chair at National University of
Juridical Sciences (NUJS) and Intellectual Property and Technology Law Society, NUJS (IPTLS), 2012.

2.
Warren Buffet, Berkshire's Corporate Performance vs. the S and P 500, Report to Shareholders, February
27, 2009, available at www.berkshirehathaway.com/letters/2008ltr.pdf (Last visited on May 9, 2013).
03/06/2019 Delivery | Westlaw India Page 7

3.
Edward Rizzo, Price is What you Pay, Value is What you Get, January 20, 2011, available at
http://www.timesofmalta.com/articles/view/20110120/business-features/price-is-what-you-
pay-value-is-what-you-get.346185 (Last visited on May 9, 2013).

4.
Id.

5.
Id. (These assets can be "tangible assets (such as property, equipment and financial assets) as well as
intangible assets such as the goodwill or brand name").

6.
35 U.S.C., §101 (The 'invention' can be a "new and useful process, machine, manufacture, or composition
of matter, or any new and useful improvement thereof ").

7.
Monisha Deka, Pre-Professional Intellectual Property Education, 46 IDEA 143, 143 (2005) (quoting Rita
Hayes, Speech, Promoting Intellectual Property for Economic Growth, 36 VANDERBILT J. of
TRANSNATL. L. 793, 795 (2003)).

8.
Kelvin King, The Value of Intellectual Property, Intangible Assets and Goodwill, June, 2003, available at
http://www.wipo.int/sme/en/documents/value_ip_intangible_assets.htm (Last visited on May 9, 2013).

9.
It shall be demonstrated that while the process of creating the IP should have no legal recognition per se,
the creative or inventive processes are nevertheless more than adequately recognized in circles outside
the legal world. This, as will be discussed further in Section II, includes media attention and general
acclaim in the inventor or author's social and professional circles.

10.
The four main bodies of intellectual property law discussed herein are: patent law, copyright law, trademark
law, and trade secrete law.

11.
Helen Phillips, Introduction: The Human Brain, September 4, 2006, available at http://www.
newscientist.com/article/dn9969-introduction-the- human-brain.html (Last visited on May 9, 2013).

12.
Grace Rubenstein, Brain Imagery Probes the Idea of Diverse Intelligences: MRI Scans Show that Human
Abilities Come in Many Combinations, April 1, 2009, available at http://www.edu-
topia.org/multiple-intelligences-brain-research (Last visited on May 9, 2013) (Brain research has shown
that "the complex abilities apparent in individual kids are reflected on the inside, as well as the outside.
Parts of the brain involved in reading, math, music, and personal relationships are different - larger or
smaller, more or less active - in every child. And perhaps most surprising, scientists have established that
learning and practicing certain skills can cause the corresponding brain areas to morph and grow").

13.
See, e.g., Nancy C. Andreasen, A Journey into Chaos: Creativity and the Unconscious, 9 MENS SANA
MONOGRAPHS 42 (2011), available at http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3115302/(Last
visited on November 24, 2013) ("The creative process is characterized by flashes of insight that arise from
unconscious reservoirs of the mind and brain. During the creative process, the brain works as a
self-organizing system").

14.
See generally John Robert Dew, Are you a Right-Brain or Left-Brain Thinker?, 29 QUALITY PROGRESS
91 (1996), available at http://bama.ua.edu/~st497/pdf/rightorleftbrain.pdf (Last visited on November 24,
2013) (Pointing out that individuals have "developed comfortable patterns of thinking that are reinforced in
the neural networks of [their] brains" and in order to "achieve [one's] full potential", one must understand
one's own mind, and that of others, in order to appreciate the differing personalities that result from varying
brain 'dominance' among individuals).

15.
Tom Jacobs, The Musician's Brain, PACIFIC STANDARD March 17, 2008, available at http://www.
psmag.com/science-environment/the-musician-s-brain-4698/(Last visited on November 24, 2013) (Finding
in musicians that "one fundamental part of the creative process can be traced to specific brain activity");
See also Robin Frederick, Notes on Songwriting, available at http:// www.robinfrederick.com/write.html
(Last visited on May 9, 2013) (Urging aspiring songwriters to consult sources "that have emotional energy"
03/06/2019 Delivery | Westlaw India Page 8

for the writer); Write a Song, Getting Started With Songwriting, available at http://www.writeasong.org/(Last
visited on May 9, 2013) (Explains that "[s]ong writing is a great way to express creativity and to share
thoughts [and] emotions with others").

16.
Jamie Katz, The Measure of Genius: Michelangelo's Sistine Chapel at 500, SMITHSONIAN. COM, April
10, 2009, http://www.smithsonianmag.com/arts-culture/The-Measure-of-Genius-
Michelangelos-Sistine-Chapel-at-500.html (Last visited on November 26, 2013).

17.
Lairweb, Mona Lisa, available at http://www.lairweb.org.nz/leonardo/mona.html (Last visited on September
27, 2012).

18.
Post-it® Brand Products, About Post-it Brand, available at
http://www.post-it.com/wps/portal/3M/en_US/Post_It/Global/About/About/(Last visited on September 17,
2012).

19.
Enchanted Learning, The Invention of the Light Bulb: Davy, Swan and Edison, available at
http://www.enchantedlearning.com/inventors/edison/lightbulb.shtml (Last visited on September 27, 2012).

20.
See Ben Block, Life-Cycle Studies: Post-it Notes, World Watch Institute, 2013, available at
http://www.worldwatch.org/node/6387 (Last visited on November 24, 2013) ("Post-It-Notes now generate
some $1 billion annually and dominates the self-stick note market."); IBIS World, Lighting and Bulb
Manufacturing in the US: Market Research Report, June, 2013, available at
http://www.ibisworld.com/industry/default.aspx?indid=780 (Last visited on November 24, 2013) (Reporting
the U.S. lighting and bulb manufacturing industry to have a revenue of $3 billion USD).

21.
Class for Physics of the Royal Swedish Academy of Sciences, Scientific Background on the Nobel Prize in
Physics 2010: Graphene in THE ROYAL SWEDISH ACADEMY OF SCIENCES 6, October 5, 2010,
available at http://www.nobelprize.org/nobel_ prizes/physics/laureates/2010/
advanced-physicsprize2010.pdf (Last visited on November26, 2013).

22.
Id.

23.
Stefanie Blendis, Graphene: 'Miracle Material' Will be in Your Home Sooner than You Think, October 6,
2013, available at http://www.cnn.com/2013/10/02/tech/innovation/graphene-
quest-for-first-ever-2d-material/(Last visited on November 24, 2013) (Graphene's co-discoverer, Professor
Andre Geim, before his monumental discovery acknowledges that, "my physics intuition, developed over
the last thirty years, told me that this material shouldn't exist. And if you had asked 99.9% of scientists
around the world they would have said the idea of [graphene] was rubbish and that graphene shouldn't
exist, [but] our intuition was completely wrong").

24.
Id.

25.
Id.

26.
ANDRE K. Geim, Author Commentaries - 2008: U. Manchester's Andre Geim: Sticking with Graphene - For
Now, August 2008, available at http://archive.sciencewatch.com/inter/
aut/2008/08-aug/08augSWGeim/(Last visited on May 9, 2013).

27.
It should be noted here that although the compound itself may not be patentable, there is still the option for
obtaining patents on the end uses of or method for obtaining the graphene.

28.
See Rachel Brandenburger, Promoting Innovation Through Competition, U.S. Department of Justice
(2011), available at http://www.justice.gov/atr/public/speeches/279093.pdf ("Today it is widely recognized
that the successful promotion of innovation requires both competitive markets and the protection of
intellectual property rights because each drives innovation in complementary ways. Competition between
companies is a key driver of innovation and technological change [because it] pushes companies to
03/06/2019 Delivery | Westlaw India Page 9

innovate in order to profit from their innovations by being the first to develop and bring a new product to
market or by increasing market share").

29.
Clarissa Long, Intellectual Property Rights in the Developing World, July 1, 1997, available at
http://www.fed-soc.org/publications/detail/intellectual-property- rights-in-the-developing- world (Last
visited on May 9, 2013).

30.
See World Intellectual Property Organization, WIPO Member States, available at http://www.
wipo.int/members/en/(Last visited on May 9, 2013) (While the United States' IP laws are cited, much of the
information contained herein is based on materials from the World Intellectual Property Organization, of
which the United States of America is but one state member. There are currently 185 member states
(including most of the world's developed and many developing nations), and the entire list can be
requested from WIPO).

31.
The Constitution of the United States, 1989, Art. I, § 8, cl. 8.

32.
Xuan-Thao Nguyen, Collateralizing Intellectual Property, 42 GA. L. REV. 1, 6 (2007) (Citing U.S. Const.
Art. 1, § 8, cl. 8, which states, in part, "The Congress shall have 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").

33.
35 U.S.C., §101 (The 'invention' can be a "new and useful process, machine, manufacture, or composition
of matter, or any new and useful improvement thereof ").

34.
World Intellectual Property Organization, WIPO Intellectual Property Handbook: Policy, Law and Use,
Patents, Introduction, 2004, available at http://www.wipo.int/export/sites/www/ about-ip/en/iprm/pdf/ch2.pdf
(Last visited on May 9, 2013).

35.
Id.

36.
Id.

37.
See e.g., Regulation (EC) n. 650/2012; European Parliament Directorate-General for Internal Policies,
Citizens' Rights and Constitutional Affairs, July 2012, available at http://www.eu-
roparl.europa.eu/document/activities/cont/201212/20121220ATT58404/20121220ATT5840 4EN.pdf (Last
visited on November 24, 2013) (Citing rulemaking's objectives as being for simplicity and predictability);
WhiteHouse.Gov, 2010 Joint Strategic Plan on Intellectual Property Enforcement, June 2010, available at
http://www.whitehouse.gov/sites/default/files/ omb/assets/intellectualproperty/intellectualproperty
_strategic_ plan.pdf (Last visited on November 24, 2013) ("So long as the rules and rights for intellectual
property are predictable and enforceable, Americans will continue to lead in the effort to improve global
prosperity").

38.
WIPO, supra note 33, 40 (Copyright and Related Rights, Introduction).

39.
Id (emphasis supplied).

40.
17 U.S.C. §102, House Report No. 94-1476 (U.S. Copyright Law, for example, states that "the definition of
copyrightable 'pictorial, graphic, and sculptural works' carries with it no implied criterion of artistic taste,
aesthetic value, or intrinsic quality").

41.
WIPO, supra note 33, 67 (Trademarks, Introduction) (The trademark concept dates back thousands of
years. "As long as 3,000 years ago, Indiana craftsmen used to engrave their signatures on their artistic
creations before sending them to Iran. Manufacturers from China sold goods bearing their marks in the
Mediterranean area over 20,000 years ago and at one time about a thousand different Roman pottery
marks were in use, including the FORTIS brand, which became so famous that it was copied and
counterfeited").
03/06/2019 Delivery | Westlaw India Page 10

42.
Id.

43.
Id., 67, 68 (Trademarks, Introduction).

44.
Id., 68.

45.
Id.

46.
Id., 71 (Trademarks, Criteria of Protectability); United States Patent and Trademark Office, Maintaining a
Trademark Registration, available at http://www.uspto.gov/faq/t120052.jsp (Last visited on November 24,
2013) (In the United States, for example, "[f ]or a trademark registration to remain valid, an Affidavit of Use.
. . must be filed (1) between the fifth and sixth year following registration, and (2) within the year before the
end of every ten-year period after the date of registration").

47.
WIPO, supra note 33, 71.

48.
Id.,72 (Trademarks, Requirement of Distinctiveness).

49.
See Elmer William Hanak, III, The Quality Asurance Function of Trademarks, 43 FORDHAM L. REV. 364
(1974) (Arguing that "[i]f the origin of a product is of concern to a consumer, it is only because the
manufacturer's [i.e., trademark owner's] products have come to be associated with a certain level of
quality").

50.
WIPO, supra note 33, 150 (Violation of Trade Secrets) ("Some countries have special provisions for the
protection of trade secrets either under specific legislation on unfair competition or as part of another law.
Other countries treat trade secrets as an aspect of tort law. Still other countries have enacted criminal,
administrative, commercial or civil law provisions prohibiting the unauthorized use or disclosure of business
secrets."); See also Dawn Rudenko Albert, Trade Secrets in the United States, INTELLECTUAL ASSET
MANAGEMENT, 2010, available at http:// www.iam-magazine.com /issues/article.ash x?g=e85a7dee-1c0f-
42e0 -8573- 6cf 922e57c1d (Last visited on November 24, 2013) (In the United States, trade secret law
issues are governed by individual states' laws, but "there is a trend towards achieving some uniformity, with
46 states having adopted various statutes modeled after the Uniform Trade Secret Act (USTA)").

51.
Id., WIPO.

52.
Id (emphasis supplied).

53.
Id.

54.
Id. (So long as patent applications are not published by the patent office, inventions that qualify for patent
protection can also be the subject of a trade secret).

55.
Id.

56.
Survey of Additional IP Developments, 28 BERKELEY TECHNOLOGY L. JOURNAL 1112, 1128 (Citing
Aqua Connect, Inc. v. Code Rebel, LLC, No. CV 11-5764-RSWL (C.D. Cal. Feb. 13, 2012) (In the United
States, reverse engineering a trade secret-protected item can potentially provide grounds for alleging trade
secret misappropriation, depending on whether the reverse engineering was done despite an explicit
confidentiality understanding. For example, a California District Court found that "Breach of an End Use
License Agreement prohibiting reverse engineering was not sufficient to establish a cause of action for
misappropriation of a trade secret [because] Breach of an End Use License Agreement did not elevate
reverse engineering to the level of 'improper means,' nor did it create a 'duty to maintain secrecy'."); But
see Crowell Moring, Circuit Court Reinforces that Neither Lack of Novelty nor Ability to Reverse Engineer
are Defenses to Trade Secret Misappropriation, January 30, 2012, available at
http://www.crowell.com/NewsEvents/AlertsNewsletters/IP-Insights/
 03/06/2019 Delivery | Westlaw India Page 11

Circuit-Court-Reinforces-That-Neither-Lack-Of-Novelty-Nor-Ability-To-Reverse-Engineer-
Are-Defenses-To-Trade-Secret-Misappropriation#.Uobxd42GF0w (Last visited on November 24, 2013)
(However, reverse engineering itself is not always a way to safely expose the trade secret without
consequences. An example was seen in 2011 in Avid Air Helicopter Supply v. Rolls Royce Corp., where
the Court, in determining whether there was trade secret misappropriation despite the misappropriated
information being allegedly readily acquired by reverse engineering, focused not only on misappropriation
of the trade secret-protected documents, but also on the "time and energy that would be required to
ascertain the [trade secret] information publicly").

57.
Marc J. Pensabene and Christopher E. Loh, How to Assess Trade Secret Damages, Managing IP
Magazine June, 2006, available at http://www.ipo.org/wp-content/uploads/2013/04/
Howtoassesstradesecretdamages.pdf (Last visited on November 24, 2013) (Further, legal damages for
revealed trade secrets are generally related to misappropriation and unjust enrichment).

58.
WIPO, supra note 33, 150.

59.
See e.g., Gene Quinn, AIA Oddities: Trade Secrets, Re-patenting and Best Mode, IP watchdog inc,
September 18, 2013, available at http://www.ipwatchdog.com/2013/09/18/aia-oddities-
trade-secrets-re-patenting-and-best-mode/id=45108/(Last visited on November 24, 2013) (Concerning both
previous and newly passed U.S. patent laws, full disclosures are a requirement in order to be eligible for
patent protection; trade secrets can be patented, but the full disclosure requirements for patentability must
still be met).

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