Page 7 - Grapevine May-June 2019
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In The Winery
coveries for a limited time. In other words, it gives protection wins, regardless of who first came up
the patent holder a limited-term monopoly on his with the idea. Also, any public disclosure of your
invention. Generally, new machines, chemicals, idea (such as a trade show) starts a 1-year clock to
electronics, methods of production, and in some file or you may lose your eligibility for patent pro-
cases, methods of doing business, are eligible for tection.
patent protection.
Copyrights Protect Creative Works
Ideas alone, however, are not patentable. They
must first be “reduced to practice,” meaning that The authority for copyright protection stems from
either the inventor must have actually created the the same section of the U.S. Constitution as patent
invention or have described it in sufficient detail protection, discussed above. Our founding fathers
that someone skilled in that area could follow recognized the valuable contribution made to soci-
the disclosure and create it themselves. So, one ety by authors and artists and, therefore, sought to
can’t get a patent on a time machine, because encourage creative expression by providing protec-
(at least for now) no one has figured out how to tion for artistic works. Examples of copyrightable
defy the time-space continuum. In addition, to be materials include, books, paintings, sculptures,
patentable, ideas must be novel, meaning that no musical compositions, and photographs.
one else has ever disclosed that idea before, and
non-obvious, meaning that the idea cannot be an Unlike inventive ideas, which are only protected
obvious variant on someone else’s invention. when the government issues a patent to the inven-
tor, copyrights attach at the moment the artistic
Given that humans have been making wine for work is “fixed” in a tangible medium. So, for exam-
thousands of years, one might think that coming ple, if a composer develops a new musical score
up with something novel in the winemaking pro- in her head it isn’t protected, but the moment she
cess would be impossible. Not so. In preparation translates that tune to notes on a page or comput-
for this article, I ran a quick search of patents er screen, it becomes protected by copyright. In
containing the word “wine” in the title and got order to enforce that copyright in court, however,
1184 hits. Some recent examples include U.S. it must be registered with the U.S. Copyright Office.
Patent No. 10,124,305 – “Agitation device for red While it is possible to wait until an infringer comes
wine production,” U.S. Patent No. 10,113,979 along before filing for registration, doing so can
– “Systems, probes, and methods for dielectric severely limit the damages that may be available to
testing of wine in bottle,” and U.S. Patent No. the author of the creative work. So, early registra-
10,005,993 – “Combined wine fermenter and tion is the better course.
press.” Improvements in any area of the wine
industry may be patentable including: new types In the wine industry, copyright issues often crop
of bottles, decanters, closures, and caps; improved up with regard to who owns the artwork contained
methods of separating grapes from stems; new pro- within a label or marketing material. Generally,
cessing equipment; improved testing procedures; the author of a work owns the copyright. But, if
improved packaging; etc. Essentially, anything that an employee of the winery, acting within the scope
lowers costs between the vine and the consumer, of their employment, creates an image that the
improves the quality of the wine, or enhances the winery owner incorporates into its labels, that pic-
consumer experience is worth considering for pat- ture is considered a “work made for hire” and is
ent protection. owned by the winery. Where disputes often arise,
however, is if the winery hires an outside artist or
One word of caution, however; time is of the a branding agency to develop the artwork. In that
essence. The America Invents Act of 2011, brought case, the winery should include language in its con-
the U.S. in line with most other countries in being a tract requiring assignment of all copyrights to the
“first to file” system, meaning if two people devel- winery for the created artistic works.
op the same invention, the first to file for patent
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