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I recently took a test with the following question: "Which of the
following are created by Article I, Section 8 of the U.S.
Constitution:
A)Patents
B)Copyrights
C)Trademarks
D)Trade secrets
E)All of the above
Now, I think the true answer is (A) AND (B). Trade secrets, at least,
are only a part of state law, not federal law. Can someone provide a
definitive answer to this question? Thanks.
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dhguy23@yahoo.com (Davis Howard) on 16 Dec 2003 suggested:
I recently took a test with the following question: "Which of the
following are created by Article I, Section 8 of the U.S.
Constitution:
A)Patents
B)Copyrights
C)Trademarks
D)Trade secrets
E)All of the above
Now, I think the true answer is (A) AND (B). Trade secrets, at least,
are only a part of state law, not federal law. Can someone provide a
definitive answer to this question? Thanks.
The correct answer, as I see it, would be "None of the above".
Article I, Section 8, in the context of your thought, gives the Congress
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". It is an enablement
clause, not an obligatory clause nor creationary clause.
However, (A) & (B) above are the methods that are enabled by the
aforementioned clause. Be aware though, that Federal Trademarks and
Trade Secrets are enabled in the same Section 8, by the following
clause, "To regulate commerce with foreign nations, and among the
several states, and with the Indian tribes".
So if you change the question you were given from "created" to
"enabled", then (E) would be the correct answer, in my opinion.
--Douglas
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On 16 Dec 2003 13:56:15 -0800, Davis Howard <dhguy23@yahoo.com> wrote:
I recently took a test with the following question: "Which of the
following are created by Article I, Section 8 of the U.S.
Constitution:
A)Patents
B)Copyrights
C)Trademarks
D)Trade secrets
E)All of the above
Now, I think the true answer is (A) AND (B). Trade secrets, at least,
are only a part of state law, not federal law. Can someone provide a
definitive answer to this question? Thanks.
A, B, and C at least are all powers reserved to Congress by Article I, Sec 8.
It's probably not correct to say that any of them were created by the
constitution, but rather that Congress is empowered to legislate them into
existence. Trademark law is based on the Commerce Clause, while Patents and
Coprights are based on the IP Clause.
I'm drawing a blank on whether there is any federal trade secret law, but
I suppose the Commerce Clause might enable Congress to pass such law.
I would have selected E.
Isaac
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Isaac <isaac@latveria.castledoom.org> writes:
Trademark law is based on the Commerce Clause, while Patents and
Coprights are based on the IP Clause.
Isn't EERYTHING that Congress does ultimately based on the Commerce
clause, at least as a fallback argument? After all, everything we do
is, in some way, interstate commerce. Specifically, I'm thinking of
activities such as breathing, because the exhaled nitrogen molecules
will eventually cross state lines and be used in a fertilizer factory.
--
Rahul
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On Wed, 17 Dec 2003 01:02:27 +0000 (UTC), Rahul Dhesi
<c.c.eiftj@patentsXXt.usenet.us.com> wrote:
Isaac <isaac@latveria.castledoom.org> writes:
Isn't EERYTHING that Congress does ultimately based on the Commerce
clause, at least as a fallback argument? After all, everything we do
is, in some way, interstate commerce. Specifically, I'm thinking of
activities such as breathing, because the exhaled nitrogen molecules
will eventually cross state lines and be used in a fertilizer factory.
I don't think so. There are limits as to convoluted an argument a
majority of the Supreme Court will accept. The Commerce Clause doesn't
extend far enough to allow Congress to ban guns around schools, or to
support the Violence against Women Act. IMO (and as pointed out by
the desent in those cases) it isn't that hard to make a far more
direct connection to interstate commerce than exhaled nitrogen
molecules.
Further, in some cases it's just silly to suggest that the Commerce
Clause is a fallback. If Congress is exercising an explicitly granted
power under the Constitution, and there are a bunch of them, what sense
does it make to insist that a twisty Commerce Clause argument allows
Congress to do the same thing.
I think Congress could create patent and copyright like protection using
the Commerce Clause if the IP Clause didn't exist. There wouldn't be
any wording about "limited times" or "authors or inventors", so it's
possible that such protection might be quite different from what we
have under the IP Clause.
Isaac
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Isaac <isaac@latveria.castledoom.org> writes:
Isn't EERYTHING that Congress does ultimately based on the Commerce
clause, at least as a fallback argument? After all, everything we do
is, in some way, interstate commerce. Specifically, I'm thinking of
activities such as breathing, because the exhaled nitrogen molecules
will eventually cross state lines and be used in a fertilizer factory.
I don't think so. There are limits as to convoluted an argument a
majority of the Supreme Court will accept. The Commerce Clause doesn't
extend far enough to allow Congress to ban guns around schools, or to
support the Violence against Women Act....
This are, of course, distinguishable because no nitrogen is exhaled by
guns or by violence. Admittedly guns do generate other products of
combustion, but none of those are used in fertilizer factories.
--
Rahul
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On Wed, 17 Dec 2003 11:05:34 +0000 (UTC),
Rahul Dhesi <c.c.eiftj@patentsXXt.usenet.us.com> wrote:
Isaac <isaac@latveria.castledoom.org> writes:
This are, of course, distinguishable because no nitrogen is exhaled by
guns or by violence. Admittedly guns do generate other products of
combustion, but none of those are used in fertilizer factories.
Uhh... Leggo of my chain.
Isaac
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