Photo of Audrey A Millemann

Audrey Millemann is a shareholder with Weintraub Tobin and practices in the Intellectual Property and Litigation sections. She is a litigator and a registered patent attorney.  Audrey advises clients on all issues of intellectual property law, including infringement, validity, and ownership of patents, trademarks, and copyrights.

A design patent protects a new, original, ornamental design for an article of manufacture. 35 USC section 171. “Ornamental” means that the design is purely decorative; the patentability is based on its visual aspects. Those aspects are the shape or configuration of an article (like the shape of a bottle or a vase), the surface ornamentation on the article (like a painting on the bottle or vase), or a combination of both. The design must be a design for a specific article; it cannot exist independently of the article. The must be visible during normal use of the article; it cannot be concealed.
Continue Reading What is a Design Patent?

Not everything is patentable. First, only inventions are patentable. Second, only certain inventions are patentable. Four types of inventions are patentable: articles of manufacture, machines, processes, and compositions of matter. 35 U.S.C. §101. These four types of inventions are referred to as patent-eligible subject matter. Some things, referred to as patent-ineligible subject matter, are not patentable: laws of nature, natural phenomena, and abstract ideas.
Continue Reading Alice is Alive and Well!

The United States Copyright Office has refused to register a copyright for a work of art created by a machine.

The work of art is a two-dimensional picture that is mostly dark and sort of looks like a painting. It is a view looking towards a series of two archways over railroad tracks, with walls along the sides covered in very dark green, purple, blue, and pink foliage, with a tiny bit of blue and cloudy sky above. The title is “A Recent Entrance to Paradise.” The work was created by a machine called “Creativity Machine” and was submitted for copyright registration in 2018 by Steven Thaler.
Continue Reading Is Machine-Made Art Copyrightable?

Business owners often ask whether they should protect their intellectual property with a trade secret or a patent. The answer is:  It depends.

What Can Be Protected? 

The first thing to consider is what it is that needs to be protected.  A trade secret protects a business’s confidential and proprietary information.  The information can be a formula, process, or customer list.

A patent protects an invention. The invention can be an article of manufacture, a machine, a process (such as software), or a composition of matter (like a chemical formula).
Continue Reading Trade Secret or Patent?