FALL 2005

Introduction to Intellectual Property

 
Course No. 9200 700, 9200 800
Tu 6:30 - 9:30 p.m.
Room W-206
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2003, 2004, 2005  Jay Dratler, Jr.   For permission, see CMI.
 

Course Description

Background
Course Content
Prerequisites
Pedagogic Approach
Study Groups
Reading Material

Background

"Intellectual property" is a generic term for legal property rights in intangible creations of the human mind.  In this course, we will study all the major fields of intellectual property—patents, copyrights, trademarks, trade dress, and trade secrets.  We will also study aspects of state unfair competition law relating to trademarks, trade dress, and misappropriation.

Other, less central, fields of intellectual property law we will mention but not cover in depth.  These include semiconductor chip protection, rights of publicity under state law, plant patents, plant variety protection, and design patents.

Competent practice in intellectual property law requires some degree of specialization.  Yet the days are long past when general business lawyers could leave intellectual property matters entirely to specialists.  Nearly every business produces or uses some sort of copyrighted material, such as advertising, instruction manuals, videotapes, or computer programs.  Furthermore, virtually every business has a trade name, trademark or service mark that it wishes to protect.  Even patent law—once thought to be an obscure specialty—may expose ordinary businesses to infringement liability, even if they do no research, development or innovation.  Just as every business lawyer needs to know enough about tax law to spot important tax issues and, if necessary, refer clients to tax specialists, so business lawyers should have some basic knowledge of intellectual property law.

This course attempts to provide that basic knowledge by emphasizing matters of interest to the general business lawyer.  At the same time, it provides a foundation for advanced study of copyrights, patents, trademarks, trade dress, trade secrets, and unfair competition.

Intellectual property is not only an important part of general business law, broadly construed.  It is also a "hot" field of legal practice.  The reasons are primarily economic.  For some years, low-wage nations have been siphoning manufacturing jobs and indeed whole industries away from the United States and other industrialized nations.  In order to generate something of value (besides manufactured products) for international trade, industrialized nations like our own are relying increasingly on intangible forms of wealth, chiefly services and intellectual property.  As our manufacturing base continues to decline under the implacable economic forces of "globalization," intellectual property will remain an important object of trade—and no doubt gain in importance—both inside and outside the United States.

The international impact of these developments is particularly striking.  As U.S. consumers have bought more and more products made abroad, our balance of trade has gone into deep deficit.  If we hope to restore the balance, we must sell abroad the intangible output of our research-and-development, communications, and entertainment industries, that is, intellectual property.  Precisely because it is intangible, this output is easy to steal, unless other nations also provide strong legal protection for intellectual property.  It is therefore no accident that in recent years the United States has pushed other nations—particularly developing ones—to strengthen their intellectual property protection.  Other industrialized nations, including Japan and the members of the European Union, have joined the U.S. in this effort.

Examples of heightened interest in the international aspects of intellectual property abound.  In 1988, Congress substantially revised the trademark and copyright laws to conform more closely with international norms.  These revisions allowed us, in 1989, to join the major multilateral copyright convention—the so-called "Berne Convention."  In 1988 we also revised our patent law to strengthen protection against imported products of patented processes.  Late 1990 saw further revision of our copyright laws to conform more closely with international norms for protecting architectural works and author's "moral rights."  This course will cover many of these recent developments, but not in great detail.  Further elaboration will require other courses and individual research.

Perhaps the past decade's most important development in international protection of intellectual property is the so-called "TRIPS Agreement."  On January 1, 1995, the World Trade Organization ("WTO") sprang into being as successor to the GATT 1947.  Among the many WTO accords is the so-called Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS Agreement").  This multilateral compact provides, for the first time ever, a comprehensive list of minimum legal norms for intellectual property protection, which all members of the WTO are supposed to observe.  Like the WTO in general, this agreement may prove to be a giant stride toward uniformity and fluidity of international trade.  We will not study this important document directly, but we will discuss its effect upon various aspects of U.S. law.
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Course Content

The general field of intellectual property (IP) is an extremely broad field and growing broader each year.   Already it includes patents, copyright, trademarks and unfair competition, trade secrets, semiconductor chip protection, rights of publicity, and such common-law topics as general misappropriation.  In addition, complete understanding of the field increasingly requires some acquaintance with related torts, such as defamation, trespass to chattels, and the interference torts (interference with contract and prospective economic advantage), as well as the impact of pre-emption (both constitutional and statutory), the First Amendment, and the antitrust laws. IP is therefore so complex that it is barely possible to cover a single major sub-field, such as patent or copyright, in a single semester, let alone the entire field.

Accordingly, this will be a survey course in the true sense of the term.  We will not have time to cover even the most significant issues in detail.  Rather, we will focus on important issues and fundamental concepts of law, economics and policy, seeking to provide a basis for future understanding and further research.  

Our goal will be a broad overview and accurate understanding at the conceptual level.   Our reading materials will be more varied than is usual in law school courses.  Of course there will be the usual edited cases, statutes, and regulatory materials.  However, there will be more and more difficult statutory material because some of the statutes that we will study are new, and all are complex.

Learning intellectual property law is fun.  Unlike much of the law, the material which we will study is highly conceptual and generally logical, though occasionally counterintuitive.  The cases involve all the excitement of modern life, from innovations in computers and biotechnology to developments in entertainment, publishing and marketing.  Several of my students have told me that the intellectual property cases which we read are among the most interesting in the law school's curriculum.

There is, however, a lot to learn.  Intellectual property law is largely a creature of statutes, and the statutes are undergoing almost continual change.  Moreover, current statutes are intricate patchworks of past amendments, and some of them are execrably drafted.  The interaction between federal and state law and consequent federal preemption further complicate the picture.

Apart from fundamental principles and concepts—which we hope will not change soon—perhaps the most important thing you will learn in this course is statutory interpretation.  This course should test and develop your skills in working with statutes.  If well learned, these skills should help you to construe and apply new laws with precision and confidence as they are written. These skills will serve you well not only in this course, but in other courses and your professional life as well.
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Prerequisites

This course has no academic prerequisites.  It is the basic survey course in intellectual property (IP) and the core (required) course for the IP Certificate.  You should take this course if your are interested in earning the IP Certificate at the University of Akron School of Law or if you are not sure whether you have an interest in IP and wish to "test the waters."  Even if you do not wish to earn the IP Certificate and just want to "dabble" in IP, you should consider taking this course as a background for other, more specialized IP courses.

Although this course has no academic prerequisites, it does have prerequisites of a technical nature.  You must have access to a personal computer with e-mail and "Web-surfing" capability in order to enroll in this course.  All class announcements and assignments will be posted on this Website, and some may be given by e-mail alone. (See Electronic Communication).

Any kind of personal computer will do.  Your computer need not be IBM-compatible or run Windows.  Apple owners and Linux users are welcome.  If you do not have a personal computer of your own, you may still take this course.  Just see the Library staff for instruction on using the Library's computers to send and receive e-mail and "surf the Web."  If you have a laptop computer, you are welcome to bring it to class as long as you don't disturb other students (for example, by manic typing).

Whatever your level of skill, you should check your electronic mail at least twice a week for mail relating to this course.  You should also check this Website at least 48 hours before each class to receive your reading assignment for that class.

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Pegagogic Approach

Intellectual property (IP) law is a highly conceptual and complex field, and it is growing more so annually.  Learning it requires an active classroom experience.  This is not a course for "back-benchers" or for those accustomed to doing no work during the semester and cramming for final examinations.

Consequently, I will expect regular class attendance and active class participation from everyone.  Sometimes this will take the form of the usual Socratic discussion; sometimes we will engage in role-playing, problem solving, or other forms of classroom interaction.  But there will be some form of interaction in every class session.

In addition to reading cases, statutes, and regulatory and background material, your class preparation will include occasional sets of short hypothetical problems to solve.  You will be expected to solve these problems before class and to bring your solutions with you, in outlined or written form, to discuss in class.  If you attempt to solve them "on the fly" in the course of class discussions, you will be marked unprepared, whether or not you eventually reach the right answer.

You may, however, solve the problems as a group exercise, whether in your study group or in an ad hoc group for that purpose.  Indeed, working in a group is encouraged: several people working together may see approaches to solving problems that single individuals, working alone, may not.

The goal of your active participation in this course will be to give you the following knowledge, values, and skills:
    (a)  A clear understanding of the purposes and policies underlying legal protection of intellectual property;
    (b)  Fluency in the black-letter doctrines and core concepts of patents, copyrights, trademarks, and trade secrets;
    (c)  An understanding of how the different types of intellectual property relate to one another;
    (d)  An appreciation of the interplay between federal and state law and the role of federal pre-emption;
    (e)  Fluency in reading, interpreting and applying federal and state statutes governing intellectual property;
    (f)  The ability to recognize key legal and practical issues and to answer common questions (or to find the answers quickly);
    (g)  Some knowledge of the international aspects of intellectual property and its importance to international trade; and
    (h)  The ability to distinguish economic and legal issues of practical importance from issues of secondary and/or solely theoretical importance.
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Study Groups

Because this course is conceptually challenging and involves complex material, I strongly urge those who have study groups to maintain them, and those who do not to consider forming them, either in general or specially for this course.  No one (not even your professor!) sees all of the angles, all of the time, in complex legal situations.  Therefore having a regular "sounding board" and "reality check" among your peers can improve your understanding, as well as increase your confidence in yourself and your enjoyment of the course.
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Reading Material

Although some reading may appear on this Website, most of our assigned reading material will be taken from the following Required Texts:

    (a)  Paul Goldstein, Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (Rev. 5th ed. 2004), Foundation Press (University Casebook Series).  Be sure to purchase the most current edition available; otherwise, the page numbers in the assignments will not match those in your book.  We will refer to this text as the "Casebook."
    (b)  Paul Goldstein and Edmund W. Kitch, Unfair Competition, Trademark, Copyright and Patent, Selected Statutes and International Agreements (2005 ed.), Foundation Press.  This will be your statutory "bible," which you should bring to class every day.  Generally speaking, you should look up in this book all statutory sections mentioned in your other readings, whether or not specifically assigned.  We will refer to this text as the "Statute Book."
    (c)  Paul Goldstein, 2005 Case Supplement to Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property, Foundation Press (University Casebook Series).  Please be sure to get the latest available version of this book.  We will refer to it as the "Supplement."
During the course of the semester, I may provide additional materials, such as current judicial decisions, statutory amendments, international agreements, or problems to be solved.  Most likely, these additional materials will appear on this Website.  Please check this Website before each week of classes for new or revised assignments and any additional materials.

In addition to the foregoing assigned reading, you may wish from time to tme to consult the following Optional Additional Texts:
    (a)  Arthur R. Miller & Michael H. Davis, Intellectual Property: Patents, Trademarks, and Copyright, West Pub. Co. (Nutshell Series, latest edition).  This book provides a good overview and study aid, although it is not entirely current.  Copies should be available in the bookstore and in the Library.
    (b)  Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Property (Law Journal Press, 1991, loose-leaf, updated semiannually).  This is a two-volume treatise, which you may wish to consult for particular problems or for deeper understanding of particular areas of the law.  Our Library has two copies, and this work is now available on line throught the LEXIS service, at the following path: Secondary Legal > View More Sources > Law Journal Press > [title of treatise].
    (c)  Jay Dratler, Jr., Licensing of Intellectual Property (Law Journal Press, 1994, loose-leaf, updated semiannually).  This one-volume treatise deals with the legal and international aspects of licensing, including the important question of antitrust restraints.  I do not recommend its purchase for this course, but you may wish to browse in it for information on licensing and the interface between antitrust and intellectual property.  It has a brief, one-chapter overview of antitrust law and compares the antitrust principles of the United States with those of Europe and Japan.  Two copies are in the Law School Library.  This work is also available on line through the LEXIS service at the same path.
    (d)  Jay Dratler, Jr., Cyberlaw: Intellectual Property in the Digital Millennium (Law Journal Press, 2000, loose-leaf, updated semiannually).  This one-volume treatise focuses on copyright law and the Digital Millennium Copyright Act, but it also has sections describing some technical aspects of the Internet. Two copies are in the Law School Library, and this work is also available on line on the LEXIS service at the same path.
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Intro to IP Home Page
Assigned Reading
Course Requirements and Policies

FALL 2005 COURSES