Intellectual Property

Professor Grimmelmann

New York Law School

Fall 2010

About the Course

Overview

This is a survey course in intellectual property law. You’ll learn the basic doctrines of the three major federal IP regimes–patent, copyright, and trademark–along with a taste of related state law, primarily trade secret.

Class Meetings

One section of IP meets Mondays and Wednesdays, 9:15—10:30 in room W301. The other meets Mondays and Wednesdays, 11:30—12:45 in Room W400.

In class, I will cover the basic doctrines, including the facts and holdings of cases, by lecturing. Then we will discuss hypotheticals and problems together, in a mix of directed Socratic dialogue and open-ended conversation. Sometimes I will have you break into small groups to work on problems together, then reconvene to discuss them as a class. Here’s what I expect from you:

Please arrive promptly, be prepared to discuss the day’s readings, and bring your casebook and course suplement with you.
The most important thing in the readings is always the problems. Class discussion will focus on them.
If you must miss a class session, email me beforehand (in your email, please remind me which section you are in).
I call extensively on students, mostly at random. I’ll do everything I can to make the experience supportive and unthreatening.
Questions are always welcome. I’ll answer as many questions as time constraints permit. If something seems unclear to you, it’s likely that others are also wondering the same thing.
In class discussions, you should be respectful of and courteous towards your classmates. One of the skills you are learning as law students is how to express disagreement in a friendly and professional manner.

Readings

You’ll need:

Craig Allen Nard et al., The Law of Intellectual Property (2nd ed. 2008). The first edition is not a suitable substitute. Note that the book contains the statutory sections that would otherwise be in a supplement.
The course supplement, to be distributed in parts:
- Part I: Trade Secret and Patent
- Part II: Copyright
- Part III: False Advertising, Trademark, and Right of Publicity

The supplement is broken down into individual assignments. Unless I tell you otherwise, you’re responsible for reading one assignment per class session. I promise to stick closely to this pace.

Recording

I will attempt to videotape each class and make the recording available through Blackboard, typically within 24 hours.

Grading

There will be a 24-hour self-scheduled take-home open-book final exam. Both sections will take the same eam. Tentatively, it will have three essay questions and be subject to a strict twelve-page limit. You’re responsible for anything in the readings or discussed in class, with the emphasis on what has been discussed in class.

The exam counts for 100% of your course grade, except that I may adjust it by one third up or down for class participation. I consider good class participation to be anything that helps your classmates learn.

Course Web Page

This syllabus is at http://james.grimmelmann.net/courses/ip2010F. As the semester progresses, I’ll post updates to it here.

Contact

Office: Room SE941, 9th Floor, 220 Church St. Phone: (212) 431-2864
Email: james.grimmelmann (at nyls) Office Hours: Wednesdays, 2:00—4:00 or by appointment

Schedule

Trade Secret (2 classes)

Topics: Policies behind trade secret law, what kinds of information can be legally protected secrets, requirements of secrecy, confidential relationships, employer/employee ownership, misappropriation, reverse engineering.

Patent (5 classes)

Topics: Policies behind patent law, structure of patents, USPTO procedure, patentable subject matter, business method and tax patents, utility, novelty, enablement, statutory bar, nonobviousness, claim drafting and interpretation, patent infringement, every-element rule, remedies (damages vs. injunctions)

Copyright (9 classes)

Topics: Policies behind copyright (esp. incentive theory), originality, ideas and expression, databases and compilations, fixation, copyrightable subject matter, derivative works, initial ownership, IP transactions, proving infringement, exclusive rights of reproduction etc., secondary liability, fair use, remedies (actual and statutory damages).

False Advertising (1 class)

Topics: Falsity, puffery, competitor standing, policies, introduction to unfair competition law.

Trademark (9 classes)

Topics: Trademark policies, distinctiveness, trade dress and producct design, functionality, registration and USPTO procedures, priority, infringement via point-of-sale confusion, other theories of infringement, dilution, merchandising, trademark fair use, nominative fair use, First Amendment, remedies (calculating damages).

Right of Publicity (1 class)

Topics: Nature and history of right of publicity, First Amendment- and fair use-style defenses, celebrity culture, review of copyright and trademark themes.

Review (1 class)

Two review problems, roughly covering the entire course, will be handed out in advance for discussion.