This is a survey course in intellectual property (IP) law. It covers the what, when, who, how, and why of IP: what kinds of information can be protected, when these rights arise, who owns them, how they are enforced, and why the legal system goes to all this trouble. We will perform comparative anatomy on bodies of law including trade secret, patent, copyright, trademark, false advertising, rights of publicity, and design patent, dissecting them to understand them on their own terms and in relationship to each other. After you complete this course, you will be able to understand how each field of IP thinks about the world, to identify what kinds of information are and are not covered by different types of IP, and to advise creators, innovators, entrepreneurs, and citizens how to deal with IP assets and threats in a wide variety of technological settings.
The course will ask and answer common questions for each distinct type of intellectual property:
For more information about previous versions of the course, including syllabi and final exams, consult my courses webpage.
I think so, but I’m biased.
Anyone can take this course. There are no prerequisites. Although this course is suitable for those who have not previously taken a course in IP, I promise that it will not be redundant for those who have. To borrow a turn of phrase from Sheldon Axler, this is IP done right. Our goal will be to grok the deep structure of intellectual property law, not to memorize doctrinal details or debate abstract points of legal theory. If you have not studied IP before, you will understand it; if you have, you will understand it in a new way.
This course is also suitable for non-law students, and students from other degree programs have taken and enjoyed previous versions of the course. Rather than getting into the weeds of IP doctrines, it lays a solid foundation for thinking about what kinds of information are and are not subject to legal protection, and for devising legally sound strategies for protecting and using information. In keeping with this commitment, I will administer a separate exam for the non-law students, one that focuses more on these other aspects of the course. All are welcome.
Students who complete this course will:
Most of the readings will be taken from a draft of the second edition of my free casebook Patterns of Information Law. I will upload new chapters here from time to time. Please download the readings from this page; otherwise, the pagination will be different and you’ll miss all of the edits and improvements I’ve added since last year.
Don’t read the materials as you would for a law-school class, memorizing facts and holdings. This is not law school; this is Cornell Tech. Read for understanding, as you would a file your colleague emailed you to bring you up to speed. I’m not going to drill you on the readings. I’m going to give a fast-paced lecture that brings out what you really need to know, and that lecture will make more sense and be easier to follow if you are familiar with the materials.
The coursepack contains the essential statutory excerpts, but I also recommend that you obtain and consult an up-to-date statutory supplement that includes the Patent Act, the Copyright Act, and the Lanham (trademark) Act. I recommend the supplement compiled by James Boyle and Jennifer Jenkins and made available as a free download. If you prefer a printed version, Amazon sells one for $13.50. You can also go section-by-section at Cornell’s Legal Information Institute, but there is something very helpful about having everything in one place.
If you need a further reference on a subject, the coursepack contains information on IP treatises. If you want an alternative take on the material, there are affordable downloadable casebooks by Boyle and Jenkins (free), by Loren and Miller (pay-what-you-want, suggested $30), and by Merges, Lemley, and Menell (2 vols, $25 and $30). Subject-specific books include Beebe on trademarks (free) and Goldman and Tushnet on advertising ($11.50). They have very different editorial approaches than this book, but they are all thoughtfully arranged and feature well-written explanations.
Please arrive promptly. I promise that we will end on time, but that means we must start on time.
Bring the readings with you, either on your computer or in hard copy.
Attendance in class is required. Especially in view of the other significant demands on your time, I will be understanding about conflicts and flexible in working with you to make alternative arrangements as needed. That said, consistent unexcused absences are not okay, and may lead to a reduced grade or exclusion from the course (after reasonable written warning).
I will lecture on the readings. I will assume general familiarity with the cases and other materials, but I will not expect you to present them. Instead, I will do my best to bring out the specific doctrines and general themes.
I will, however, ask you to discuss the hypotheticals and problems in the readings, and to apply the readings to new fact patterns (many of them ripped from the headlines).
Questions are always welcome, even when I’m discussing something else. Occasionally I will ask you to hold a question because we are about to answer it in a few minutes when discussing another case, but otherwise I will do my best to answer all questions immediately. If something is unclear to you, it is probably unclear to your classmates as well — and sometimes it is unclear to me, too.
All class sessions are recorded. You will have access to the recordings. So will I, your classmates, and other Cornell Tech faculty and staff as part of their jobs. The recordings will not be shared outside the Cornell Tech community. In special circumstances (e.g. at the request of a guest speaker) I may turn off the recording, and it might sometimes happen that the recording doesn’t work.
Your work for this class will consist of the following:
First, do the assigned readings and participate in class discussions. I will sometimes ask you to send me your answers to short problems from the coursepack in advance of class (e.g., drafting a short patent claim). These will be factored into the class-participation portion of your grade; I will give full credit for any good faith attempt.
Second, stay on top of current events in intellectual property law. Cases and recent developments will often fuel our discussions in class. Your ability to remain current with the news will also be factored into class participation. I highly recommend the Bloomberg BNA Law Reports, particularly the Patent, Trademark, and Copyright Daily. BNA stands for “Boring, Nevertheless Accurate.” If you want something a little less dry, I also recommend:
Third, there will be a writing assignment of 5-10 pages, tentatively due around the end of October. It will place you in a professional role and require you to provide appropriate analysis — and to present it in a professionally appropriate genre. Because this is Cornell Tech, the genre will not be “appellate brief” or “memo to law firm partner.” Instead, it will require you to make persuasive arguments to an audience that includes people without without legal training. You will work in self-selected teams of 3 or 4; you will receive one grade on your joint work product.
Fourth, there will be a take-home final examination. It will consist of one or two questions that follow the same basic parameters as the writing assignment. The principal difference is that you will work on the final examination individually. I will hand out the examination after the end of classes (including a review session), and you will have approximately one to two weeks to work on it.
All written work will be blind-graded; I will provide instructions to ensure appropriate anonymity.
Further details on the timing, content, and other aspects of the assignments will be forthcoming.
Your grades will be determined as follows:
I may adjust grades up or down by one third of a grade (e.g. B+ to A-) for consistently good or poor class participation, or, in truly exceptional circumstances, by two thirds. I consider good class participation to be anything that helps your fellow students learn, and poor participation to be anything that obstructs their learning.
The final course grades will conform to Cornell Law School’s grading curve, which require that all courses be curved to a mean grade of 3.35., i.e. very close to B+.
Except where I tell you otherwise, you are welcome to collaborate freely and to consult any sources you wish to in your work for this class. I love watching students work together like an elite volleyball team: bump, set, spike.
I want our classroom to be a welcoming space, one where we all learn from the diversity of each others’ perspectives. The best comments are ones that help your colleagues learn. I will do my best to make the course interesting and enlightening regardless of your degree program, prior life experiences, or future plans. If there’s anything I can do to help, please let me know.
I expect you to act professionally and respectfully to your classmates (and our occasional guests) at all times. I will not condone harassment.
If you have a disability requiring accommodation, please give me your accommodation letter from Student Disability Services early in the semester so that I have adequate time to make appropriate arrangements. If you need an immediate accommodation for equal access, or if you think there is something I could do to improve the accessibility of the course for yourself or others, please talk to me or send me an email. Everyone’s experience is important to me.
If anything in or out of class makes you uncomfortable, please come and talk to me about it. Not all discomfort is avoidable, but I will do everything I can to help that is consistent with the educational goals of the course. I will also respect any requests for confidentiality as far as my legal and professional duties allow.
If for any reason your preferred name is not the one that appears on the course roster, please let me know how you would rather be addressed. (For example, I regularly have students who go by their middle names rather than their first names, or who have changed their names as part of a significant personal transitions.) It’s a small thing, but there’s no reason I should get it wrong.
I have asked Cornell Tech IT to make recordings of all class sessions. You will have access to the recordings. So will I, your classmates, and other Cornell Tech faculty and staff as part of their jobs. The recordings will not be shared outside the Cornell Tech community. In special circumstances (e.g. at the request of a guest speaker) I may turn off the recording, and it might sometimes happen that the recording doesn’t work.
This syllabus is at http://james.grimmelmann.net/courses/ip2018F.
I will create a Slack channel for the course and invite everyone enrolled in the class Please sign up for it; I will take questions and post announcements there. Don’t bother with Blackboard.
We are members of an academic community built on respect, trust, and honesty. Most of us are also members of a learned and regulated profession, one that enforces stringent codes of professional responsibility. I will take you at your word; in return, I expect you to be truthful and candid in your dealings with me and your classmates. Your conduct in this course is subject to the Cornell Code of Academic Integrity, the Law School Code of Academic Integrity, and the Campus Code of Conduct.
We are also joined in the endeavor that is Cornell Tech because we believe in improving the world through law and technology. I cannot compel you to do what is best and right in all things. But you should aspire to.
Phone: (657) 529-2633 [LAW-CODE]
I don’t have set office hours. But I’m around a lot. My desk is near the north end of the second floor of the Bloomberg center. If I have headphones on, just catch my eye. I’m also frequently in my “huddle” in room 270 on the hallway nearby. If the door is closed, it’s closed for a reason — send me an email! If not, come on in. If I’m not around, email is generally best.
We will usually meet Mondays and Wednesdays 12:30 to 1:45 in Bloomberg 081. Our first session will be on August 24, and our final session will be December 3.
We will also skip a few Mondays and Wednesdays due to university holidays. We will not meet on:
There will be a few make-up sessions required by the mismatch between the law school calendar and the Cornell Tech calendar. We will meet:
I will post reading assignments here as the course progreses. Assignments with dates in the past are what we actually did; assignments with specific section numbers in the future are my best guess as to when we will cover the material. Assignments without section numbers should be regarded as speculative fiction; I reserve the right to pivot before we reach them.
Some of the readings are marked as optional. These are on topics that aren’t usually regarded as “IP,” but which provide interesting context. I will discuss them briefly in class, but I will not assume that you have read them and I will not test you on them. Of course, if you’re interested, you’re always welcome to bring them up outside of class or in the Slack channel.
Ideas and Trade Secret