LAW 6512: Intellectual Property Law

James Grimmelmann

Cornell Tech

Fall 2021


Overview

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. Topics covered include trade secret, patent, copyright, trademark, copyright, false advertising, right of publicity, design, biotechnology, and software.

Course Outcomes

Students who complete this course will be able to:

For more information about previous versions of the course, including syllabi and final exams, consult my courses webpage.

Who is This Course For?

Anyone at Cornell Tech can take this course. There are no prerequisites. All are welcome.

If you have not studied IP before, the course is a self-contained introduction.

If you have studied IP before, the course’s breadth and strategic focus distinguish it from other IP courses.

This course is also appropriate for non-law students. Rather than getting into the weeds of IP doctrine, 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.

Course Logistics

COVID-19 Update

Cornell requires all students to have received an FDA- or WHO-approved COVID-19 vaccination, and “strongly encourages” all faculty and staff to be vaccinated. (I have received a full course of two doses of the Moderna mRNA vaccine.) However, Cornell allows for medical and religious exemptions from its vaccination requirement, the Delta variant of SARS-CoV-2 can lead to “breakthrough” infections even in vaccinated people, and a substantial fraction of people who have been infected are completely asymptomatic. This has important consequences for our class.

First, masking remains an essential precaution. Cornell requires masks to be worn at all times in shared indoor spaces. You should assume that in any substantial gathering of people such as a class, someone present (including you) may be carrying an asymptomatic infection, or may be at risk of becoming severely ill if infected. For their health and yours, wear your mask consistently and make sure that it fits well.

Second, if you are feeling unwell, DO NOT COME TO CLASS. This has always been the case, but it is especially important now. Rest, take care of your own health, and keep your classmates safe. DO NOT FEEL UNDER ANY PRESSURE TO ATTEND CLASS. The recording will be waiting for you when you have recovered, and I will be happy to meet to discuss anything you are concerned about missing. If you have possible COVID-19 symptoms, please have yourself tested promptly. Cornell provides detailed, updated guidance on what do if you are feeling ill.

Third, I will make every needed accommodation to make up for the disruption that COVID-19 creates in your life. These come in many forms, from family health issues to travel restrictions to stress and trauma. I do not know now what improvisations will be necessary over the course of the semester, but I promise you that I will do everything I can to help you thrive under these most difficult of circumstances.

Contact

This syllabus is at http://james.grimmelmann.net/courses/ip2021F.

Email: james.grimmelmann@cornell.edu
Huddle: Bloomberg 370
Desk: Bloomberg 3 NW, near the bookshelves

I hold drop-in office hours Mondays 2:15 to 3:15 PM. I will be in my huddle then. If you would rather meet virtually, just drop me a quick email to let me know so I can turn on Zoom. (The link is on Canvas.)

I am happy to meet at other times by appointment. It is also always fine just to swing by to see if I’m free. If I have headphones on, just catch my eye. If my huddle door is closed, it’s closed for a reason (usually a call or a meeting) — send me an email! If it’s open, come on in! If I’m not around, email is generally best.

Required and Recommended Materials

There are two required readings for the course. Both of them are free.

The following are not required but you may find them useful:

Class

Our class sessions will be devoted almost entirely to discussing the problems from the textbook. To prepare for class, read the assigned section of the textbook and then work through the assigned problems. I will generally not lecture on the readings, nor will I expect you to answer questions on them. Instead, focus on preparing good answers to the problems, drawing on the readings as needed.

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). 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.

Questions are always welcome, even when we are 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.

Assignments

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 post on Canvas your answers to short problems from the textbook 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 diligent and good faith attempt.

Second, there will be a writing assignment of ~2000 words, due on November 1. It will place you in a professional role (e.g., advising the CEO of a startup about the IP risks from a proposed product) and require you to provide appropriate analysis. 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. The exam will be available on December 11 and due by 2:00 PM on December 18.

All written work will be blind-graded; I will provide instructions to ensure appropriate anonymity.

Grading

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+.

Course Policies

Inclusion

On October 7, 1868, at Cornell University’s dedication, its founder and namesake Ezra Cornell stated, “I would found an institution where any person can find instruction in any study.” The University is committed to the principle of “… any person … any study.”

In particular, Cornell University prohibits discrimination on the basis of race, ethnicity, national origin, age, religion, belief, disability, sex, pregnancy, sexual orientation, gender identity or expression, criminal history, military or veteran status, or genetics. All are welcome here.

I will do my best to make this course interesting, supportive, and enlightening regardless of your personal identity, beliefs, prior life experiences, degree program, or future plans. If there’s anything I can do to help, please let me know.

If anything in or out of class makes you uncomfortable or interferes with your ability to participate, please raise it with me. 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.

Names, Titles, and Pronouns

I am happy to address you and refer to you however you prefer to be called. I will ask you for your name, title, and pronouns on the first day of class, and after that please tell me if I am getting something wrong or you would like me to make a change. As a matter of personal courtesy and professional respect, I also expect that you will address and refer to classmates and guests as they prefer. Beyond that, Cornell Tech is generally a very informal place.

Names: Most assumptions about other people’s names are fallacies. (See Falsehoods Programmers Believe About Names.) The only sure guide to a person’s name is to ask. It is tempting to think that when someone’s name is written as Firstname Lastname, it means that person is called Firstname. But this is wrong. Here are just a few of the many variations I have seen:

As for myself, I go by “James” (not “Jim”), and my surname is spelled with two ‘n’s at the end. For pronunciation, see my NameCoach badge.

The Law School has developed a system to help me and my colleagues pronounce your name correctly. If you want to take part, record your preferred full name on your mobile phone or computer in .mp3 format. For consistency and the ability to match the recording to your record, name the file using your netID (e.g., abc123.mp3). Once you have recorded and saved the file, upload it to: https://support.law.cornell.edu/UploadVoiceFiles/index.cfm. I also recommend NameCoach.

Titles: I won’t use your title unless you prefer that I do. (Exception: when I write formal letters of recommendation, I will use your title unless you prefer that I don’t.) The Paper Chase convention of calling law students “Mr. Hart” survives only as parody or affectation. On those extremely rare occasions when a title is called for, I go by “Professor Grimmelmann.” But you should call me “James,” not “Professor” or “Prof.”

Pronouns: I go by “he” and its inflections. I generally use “they” and its inflections to refer to an unknown or indeterminate person. But when talking about a specific known person, the correct pronouns are the ones they themselves go by.

Place and History

The island on which Cornell Tech stands was traditionally Canarsee Lenape land. It was “purchased” by Dutch colonial authorities in 1637 as part of the long history of violence, displacement, and erasure by which European settler colonialists appropriated the North American continent. Lenape tribes today occupy small reservations in Oklahoma and Wisconsin, which gives a sense of the devastation that Europeans inflicted on the Lenape and other Native Americans in driving them out from here.

By divers mesne conveyances, the island passed to the City of New York in 1828. It was used as an asylum, a smallpox hospital, a workhouse, and a prison. The conditions of life for the inhabitants of all of them were notoriously poor. Cornell Tech itself stands on the site of the prison, Blackwell’s Penitentiary, where inmates were subjected to disease, abuse, and forced labor.

The Penitentiary was demolished in the 1930s and replaced by Goldwater Memorial Hospital, a chronic-care facility. It merged in 2013 with Coler Specialty Hospital, also on the island, which serves high-risk chronic-care patients, often elderly and disabled. During the height of the Covid-19 pandemic, the dangerously crowded and poorly administered conditions at Coler were responsible for numerous infections and deaths among its residents.

All of these things are parts of what we call “history.”

She said, What is history?
And he said, History is an angel
Being blown
Backwards
Into the future
He said: History is a pile of debris
And the angel wants to go back and fix things
To repair the things that have been broken

But there is a storm blowing from Paradise
And the storm keeps blowing the angel
Backwards
Into the future

And this storm, this storm
Is called
Progress

–Laurie Anderson, “The Dream Before” (after Walter Benjamin and Paul Klee)

We cannot unsmash the debris of history; we cannot now restore the Canarsee to their homes as they were, or bring the dead to life. But we can force ourselves to look clearly upon the wreckage, to acknowledge the suffering and injustice that have brought us to this point. From it we salvage we what can, and learn what we can, to hold a mirror up before the face of the angel of history, that it might gaze upon the future, where it is always still possible to do better.

Integrity

We are members of an academic community built on respect, trust, and honesty. Many 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.

Collaboration

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.

Accessibility

If you have a disability requiring accommodation, I find it helpful to receive your accommodation letter from Student Disability Services as early in the semester as possible 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.

Professionalism

I expect you to act respectfully to your classmates (and our occasional guests) at all times. I will not condone harassment.

Beyond that, I view ”professionalism” as an act of care for others. I will do my best to model this version of professionalism in and out of class, and I encourage you to, too.

Recordings

I will record all class sessions. I will provide you with access to the recordings (via Cornell’s video-on-demand platform) for any reasonable justification, such as absence due to illness, job interviews, court appearances as part of a clinic, or disruption to your ordinary life due to a global pandemic.

I will have access to the recordings, as will your classmates who have reasonable needs for them, and any other Cornell faculty and staff who need access as part of their jobs. The recordings will not be shared outside the Cornell 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. You can request access to specific class recordings by emailing me.

You may not record your own audio or video of this course without the knowing consent of all people being recorded.

Schedule

We will usually meet Mondays and Wednesdays 9:40 to 11:00 in room 81 in the basement of the Bloomberg Center. Our first session will be on Monday, August 30, and our final session will be Monday, December 6. We will not meet on:

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.

Ideas and Trade Secret

Utility Patent

Copyright

Trademark

Advertising

Personality Rights

Case Studies

Review

Examinations