LAW 6512: Intellectual Property Law

James Grimmelmann

Cornell Tech

Fall 2019


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. Areas of law to be discussed include trade secret, patent, copyright, trademark, false advertising, right of publicity, and design patent. After you complete this course, you will be able:

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

Should I Take This Course?

I think so, but I’m biased.

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

Course Outcomes

Students who complete this course will:

  1. Know the difference between the major types of intellectual property, including trade secret, patent, copyright, trademark, right of publicity, and design patent.
  2. Know how these different bodies of law approach questions of protectability and infringement.
  3. Be able to see the connections between intellectual property and related bodies of law such as privacy and false advertising.
  4. Be able to identify protectable intellectual property interests.
  5. Be able to evaluate the intellectual property risks of a proposed course of conduct.
  6. Be able to converse intelligently with lawyers and non-lawyers about contemporary issues in intellectual property strategy and policy.

Readings

Most of the readings will be taken from Patterns of Information Law, my free and freely licensed draft IP casebook. I will upload new chapters here from time to time, well in advance of when we cover them. Please download the chapters 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.

In addition, you will need an up-to-date statutory supplement that includes the Patent Act, the Copyright Act, and the Lanham (trademark) Act. There are several excellent and inexpensive options; I recommend the one 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.

Class

The majority of our class time will be lecture: I will do my best to present the material clearly and concisely. I use slides, and I will try to make my slides available to you as PDFs before class starts.

The reading assignments are long, sometimes very long. It is okay to skim them before coming to class (especially the portions explicitly marked “skim”). You need to be oriented enough with the day’s material to know what I am talking about; the lecture will call your attention to what is significant in it. After class, you can go back and look more closely at those portions to understand them better.

We will, however, discuss the problems in the readings in detail. These you should read closely and think about before class.

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 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.

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 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 diligent and good faith attempt.

Second, stay on top of current events in intellectual property law. I maintain a list of resources that includes blogs, newsletters, podcasts, and more.

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.

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

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 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.

Resources

This syllabus is at http://james.grimmelmann.net/courses/ip2019F.

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.

If you want a study aid to tell you concisely what the doctrines of IP law are, I recommend Donald S. Chisum et al., Understanding Intellectual Property. It is dry but clear.

If you want a more detailed reference on any of the subjects we study, each chapter of the coursepack opens with a note listing relevant IP treatises. You should have digital access through Cornell to most of them.

If you want an alternative take on the material, I maintain a list of affordable IP casebooks. They have very different editorial approaches than my book, but they are all thoughtfully arranged and feature well-written explanations.

For keeping up with IP news, I maintain a list of recommended resources for students, which includes news outlets, newsletters, blogs, and podcasts.

Integrity

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.

Contact

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

I hold drop-in office hours Mondays 10-11, and 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.

Schedule

We will usually meet Mondays and Wednesdays 12:30 to 1:45 in Bloomberg 071. Our first session will be on August 28, and our final session will be December 9.

We will skip a few Mondays and Wednesdays due to the law-school academic calendar, and one Monday when I will be at a conference. We will not meet on:

There will be two 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.

Ideas and Trade Secret

Patent

Copyright

Fall Break

Trademark

Advertising

Right of Publicity

Design

Biotechnology

Remedies

Software

Review