LAW 6512: Intellectual Property Law
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.
Students who complete this course will be able to:
- Describe and compare the essential doctrines of the major types of intellectual property, including trade secret, patent, copyright, trademark, right of publicity, and design patent.
- Understand how bodies of non-IP law, such as privacy and false advertising, can also be used to control information.
- Identify protectable intellectual property interests.
- Evaluate the intellectual property risks of a proposed course of conduct.
- Provide sound and useful strategic advice on intellectual property strategy.
- Converse intelligently with lawyers and non-lawyers about contemporary issues in intellectual property policy.
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.
Please see the course policies document for information about COVID-19 safety; inclusion; names, titles and pronouns; the history of the site where the course takes place; academic integrity; unauthorized collaboration policy; accessibility and accommodations for disabilities; class recordings; and professionalism.
This syllabus is at http://james.grimmelmann.net/courses/ip2021F.
Huddle: Bloomberg 370
Desk: Bloomberg 3 NW, near the bookshelves
My office hours are whenever I’m free during the workday. You can sign up for a slot using the link on Canvas. We can meet in person in my huddle. If you need to meet via Zoom, there’s a link on Canvas. Just tell me to expect you on Zoom so I know to open my computer.
If none of the available times work for you, send me an email or DM me on the Cornell Tech Slack.
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.
- My draft IP textbook, Patterns of Information Law. I will post chapters here in advance of when we cover them.
- 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. James Boyle and Jennifer Jenkins have made one available as a free download, but it has not been updated since 2019. The authors of Intellectual Property in the New Technological Age sell an annually updated supplement as a $32 paperback. You can also go section-by-section at Cornell’s Legal Information Institute.
The following are not required but you may find them useful:
- If you want a study aid to tell you concisely what the doctrines of IP law are, I recommend Tyler T. Ochoa, Shubha Ghosh, and Mary LaFrance, 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 textbook includes 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.
- For keeping up with IP news, I maintain a list of recommended resources for students, which includes news outlets, newsletters, blogs, and podcasts.
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.
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 midterm of ~2000 words. 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. It will be available on Friday, October 7 and due by 11:59 PM on Sunday, October 16.
Third, there will be a take-home final examination of ~4000 words. It will consist of one or two questions that follow the same basic parameters as the writing assignment. The exam will be available on Wednesday, December 7, and due by 11:59 AM on Thursday, December 15.
All written work will be blind-graded; I will provide instructions to ensure appropriate anonymity.
Your grades will be determined as follows:
- Writing assignment: 1/3
- Final examination: 2/3
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+.
We will usually meet Mondays and Wednesdays 11:25 to 12:40 in room 61 in the basement of the Bloomberg Center. Our first session will be on Monday, August 22, and our final session will be Monday, December 5. We will not meet on:
- Monday, September 5 (Labor Day)
- Monday, October 10 (Fall break)
- November 2 (JG presenting at CSLAW)
- Wednesday, November 23 (Thanksgiving)
I will post reading assignments here as the course progresses. 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
- August 22: Read the Introduction and Chapter 1 (undeveloped ideas). Be prepared to discuss the questions and problems at the end of Chapter 1.
- August 24: Read Chapter 2 (trade secrets). Be prepared to discuss the problems.
- August 29: In Chapter 3, read section A (subject matter) and B.1 (claims). Problems:
- Initial Questions
- Tax Planning
- Diagnostic Test
- Worm Patent Questions
- August 31: Read sections B.2 (disclosure), B.3 (patent prosecution), C.1 (inventorship), and C.2.a (anticipation). Problems:
- Plastic Dye
- Salt Shaker. Post your claim to Canvas by midnight the night before class.
- September 5: NO CLASS (Labor Day)
- September 7: Read sections C.2.b (prior art), C.2.c (priority), and C.3 (nonobviousness). Problems:
- Pleistocene Park
- Beverage Cosy
- September 12: Read section D (similarity) and E (prohibited conduct). Problems:
- Wriggle-No-More. Do your own outside research before class! The more you prepare, the more fun this will be.
- Super Soaker
- Rapamycin Revisited
- Shrimp Deveining
- September 14: Read sections F (secondary liability), and G (defenses). Problems:
- Bait Shop
- Disposable Camera
- Bizarro World, Redux
- September 19: In Chapter 4, read section A (subject matter). Problems:
- Baseball Card Price Report
- Cooking for Kids
- September 21: Read sections B (ownership) and C (procedures). Problems:
- Monkey Selfie
- Latte Art
- September 26: Read sections D (similiarity) and E.1 (proving copying). Problems:
- September 28: Read section E.2 (exclusive rights)
- Bee Gees
- New Yorker
- Exclusive Rights (ignore the secondary-liability part of the problem)
- October 3: Read sections F (secondary liability) and G (defenses). Problems:
- Aereo Investor
- Cherry Auction
- Documentary Clearance
- Chicago HOPE
- October 5: Read section H (paracopyright) Problems:
- Music Ripping
- Bizarro World, Redux2
- Digital Transition
- October 10: NO CLASS (Fall break)
- October 12: Read Chapter 5 (music). Problems:
- Musical Creativity
- Next Best Western
- Policy Questions
Writing assignment due by Sunday, October 16, 11:59 PM
- October 17: In Chapter 6, read section A (subject matter). Problems:
- Distinctiveness Jeopardy
- Melting Bad
- Drug Stamps
- October 19: Read sections B (ownership) and C (procedures). Problems:
- Bilgewater Bill’s
- Baltimore Colts
- October 24: Read sections D (confusion) and E.1 (threshold conditions)
- Cheat Sheet
- October 26: Read sections E.2 (theories of confusion), E.3 (Section 43(a)), and F (secondary liability). Problems:
- Infringement Lightning Round
- Ambush Marketing
- Jack Daniel’s
- Paper Handbag
- October 31: Read section G (defenses). Problems:
- Defenses Lightning Round
- Vested Interest
- November 2 NO CLASS (JG presenting at CSLAW
- November 7: : Read Chapter 7 (identifier registries). Problems:
- Dilly Pickles
- Ticker Symbol
- Ophelia Pulse
- November 9: Read Chapter 8 (competitor false advertising suits), Chapter 9 (other advertising law), and Chapter 10 (geographic indications). Problems:
- Satellite TV
- Scavenger Hunt (start this one early; just keep an eye open for examples in your day-to-day life)
- N95 Mislabeling (yes this involves some research, but doing the obvious thing will quickly put you on the right track)
Right of Publicity
- November 14: Read Chapter 11 (right of publicity) and Chapter 12 (people as trademarks). Problems:
- No Doubt
- Tony Twist
- Melting Bad
- Melting Bad, Redux2
- November 16: Read Chapter 13 (useful articles, trade dress). Problems:
- Eames Chair
- Pez Dispenser
- Model Car
- November 21: Read Chapter 14 (design patent). Problems:
- November 23: NO CLASS (Thanksgiving)
- November 28: Read Chapter 15 (software). Note that this material consists primarily of case excerpts. We will spend significant time in class discussing how software works.
- November 30: Read Chapter 16 (drugs). This is dense material. Don’t worry about the details; we will focus on understanding what happens when IP meets a complex regulatory regime. No problems.
- December 1: (Make-up class) in room 081 1:00 to 2:15 PM. Read Brian L. Frye, How to Sell NFTs Without Really Trying; James Grimmelmann, Yan Ji, and Tyler Kell, The Tangled Truth About NFTs and Copyright; James Grimmelmann, The IC3 NFT License. No problems, but bring lots of questions!
- December 5: Read and prepare the Magic Trick problem. Also send me questions by email (as far in advance as possible) and I will do my best to answer them. You may find it helpful to look at exams from previous iterations of the course to see the kinds of issues I like to ask about on the exam.