FOUNDATIONS OF IP LAW SEMINAR – SPRING 2021
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ABOUT THE COURSE
Foundations of Intellectual Property Law is a three-credit seminar for upper-level law students at the University of Pittsburgh School of Law, with enrollment limited to 12 students. Prior coursework in intellectual property law is required, preferably in at least one of the intellectual property law courses offered at Pitt Law. This page is for students enrolled in the Spring 2021 version of the seminar.
The course is LAW 5862 in the University of Pittsburgh course catalog.
Each student must have previously completed at least one course in including (but not limited to) Intellectual Property (Professor Ashley), Copyright (Professor Madison), Patent (Professor Ehret), and/or Trademark Law (Professor Madison), or must have received permission to enroll from Professor Madison.
Students are expected to have learned the fundamentals of legal research, legal analysis, and legal writing.
COURSE OBJECTIVES AND THE OFFICIAL COURSE DESCRIPTION
The official course description (University of Pittsburgh course number LAW 5862) is this:
This seminar deals with the theoretical and policy foundations of patent, copyright, and trademark law. The readings consist of both contemporary and “classic” law review articles and other primary and secondary sources that explore connections between intellectual property law and a variety of possible justifications for the law and its leading cases, statutes, and treaties, including history, liberal political theory, economics and other social sciences, literary theory, and cultural theory.
The bulk of the work of the seminar consists of supervision and discussion of original research by students (that is, research in print collections and other collections of analog sources, and digital archives of print collections) on historical intellectual property topics of their choosing, and the production and classroom presentation of a significant piece of original writing by each student.
A fuller description of the goals of the course is this. In Foundations of IP Law, you will:
- Research and write. Above all, this is a course in advanced research and legal writing. Because much of the focus of the seminar is on older leading cases, it is likely that students will need to acquire and apply legal research skills that would have been familiar to students of a generation ago. Your writing will be subjected to searching critiques. Students should expect to have their writing scrutinized at the level of the word and the sentence, at the level of the concept and structure of the argument, and at the level of content.
- Participate in some sustained engagement with primary sources that surround key moments of the history and theory of intellectual property law. “Sustained engagement” is the key phrase here. Readings, class discussions, and your own research and writing will focus in great depth on a very small number of leading cases.
- Master the theory and policy behind the key doctrines of intellectual property law. The history and theory of IP law is the subject matter of the course, both as to in-class conversations and as to each student’s research and writing.
At the end of the course:
Each student should be able to undertake a critical examination of history and impact of a leading judicial precedent in the history of intellectual property law; to weave a persuasive narrative concerning that precedent, in writing and orally, for the benefit of an audience of informed readers and/or listeners; and to describe way(s) in which undertaking that examination and weaving that narrative is likely to improve their performance as practicing lawyers.
CLASSROOM COMPUTER AND WIRELESS POLICY[Omitted, for the Spring 2021 version of Foundations of Intellectual Property Law.]
CLASS MEETING TIME AND PLACE
Class will meet on Mondays from 12:50 p.m. to 2:50 p.m. There will be an intermission.
We will meet online, rather than in a physical location in the Barco Law Building. There will be no face-to-face instruction.
The online venue for the class meetings will be the ZOOM videoconferencing service (pitt.zoom.us).
The online venue for office hours will be a server in Discord (discord.com and the related app).
Instructions for how to access the ZOOM space and the Discord server are below (in part) will be distributed to enrolled students via email and will be available via course pages in TWEN and in CANVAS.
Students who want to participate in Office Hours will need to have a Discord account. Students who aren’t already familiar with Discord (in my experience, many are) should set up an account, download the Discord app, and spend some time exploring it before the semester begins. Students who would like to meet one-to-one with me can make an appointment to do that separately.
Each class session will be conducted “synchronously,” that is, in live or real time.
Class sessions will not be recorded.
CLASS ATTENDANCE AND PREPARATION
The American Bar Association and the University of Pittsburgh School of Law require regular and punctual class attendance (see law.pitt.edu/pp/attendance).
The Law School’s formal attendance policy does not apply to this course. Students are expected to attend 100 percent of class meetings.
Attendance will be taken via the Top Hat app. The attendance code for each class session is generated that day by Top Hat (i.e., a new code for each class) and will be posted in that day’s chat session on Zoom.
Students have plenty to be concerned with during the coronavirus pandemic before wondering about the consequences of possibly missing class. I will be flexible in administering the attendance policy. If you have concerns about that, please contact me.
The formal policy is less important than this:
Students are expected to arrive for class on time, which means *before the announced start time for the class.* Students are expected to read assignments in advance of the class meeting for which they are assigned. Students should be prepared to have something to say about the assigned material.
It’s best for all if students ask questions and if students refer to specific points and ideas from the assigned materials when they do that.
ABOUT ZOOM ZOOM ZOOM
To help ensure a productive online classroom environment for everyone, students should follow these guidelines when using the ZOOM service for this class:
- Health first. Log in and participate if you’re able. If you’re not, let me know privately and/or or get in touch with one of the deans at Pitt Law.
- Log in a little bit early if possible, before the official start time of the class, so that you’re ready to participate.
- Log in with a real name for your screen name: preferred first name, then preferred last name. On your Zoom image on your screen, clicking on the “three dots in the corner” settings icon should allow students to type in the preferred names.
- If possible, set up your computer in a space that’s quiet and free of distractions and interruptions. Mute or turn off music and other video sources. It’s not always possible to find a completely quiet place, so students should do their best, and we’ll all be a bit flexible.
- Camera on, if possible. Again, that’s not always possible (or desirable), so students should do their best.
- Microphone *off* by default. But know how to activate it when you want to or need to.
- Use a headset or earbuds if you can, rather that your computer’s speakers.
- In voice and in chat, be respectful of everyone else in the group.
- Class sessions may be recorded. Recordings will be posted to a private server for everyone in the class (but only everyone in the class) to review later.
CLASS CANCELLATIONS AND MAKEUPS
If a class is cancelled for any reason, it will be made up via a newly-scheduled class session.
If you, a friend, or a family member experiences illness or caregiving responsibilities that require that you take time away from this course, please tell me, and please contact the Dean of Students (Alexandra (Allie) Linsenmeyer; firstname.lastname@example.org) for assistance.
It is important that classroom conversations be respectful and accepting, and that every student bear part of the responsibility, along with me, for ensuring that the class environment is friendly and trusting.
INCLUSIVITY AND DIVERSITY
This course, like all law school courses, is designed to be challenging. If there are aspects of this course that prevent you from learning or exclude you, please let me know as soon as possible. Together we’ll develop strategies to meet both your needs and the requirements of the course.
I encourage you to visit me in office hours or by appointment.
Pitt also has other support for you in this course: the Office of Disability Resources and Services, (www.studentaffairs.pitt.edu/drs/), the Writing Center (www.writingcenter.pitt.edu/) and the Counseling Center (www.studentaffairs.pitt.edu/cc/), and the online mental health resource, ULifeline (www.ulifeline.org/UPITT#). For campus financial and food and health assistance, please see this list of resources from Pitt Libraries (pitt.libguides.com/assistanceresources), and note that you can apply for emergency loans (www.studentaffairs.pitt.edu/sorc/emergency-student-loans-esl/) as well. If you need official accommodations, you have a right to have these met; please see the section below on “Students with Disabilities.” If you would like less formal means of support in this course, please get in touch with me.
STUDENTS WITH DISABILITIES[The formality of the following comes from the University of Pittsburgh and Pitt Law.]
It is the policy and practice of the University of Pittsburgh School of Law to comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Commonwealth of Pennsylvania requirements regarding students and applicants with disabilities. Under these laws, no qualified individual with a disability shall be denied access to or participation in services, programs, and activities of the University of Pittsburgh School of Law.
Students who require accommodations because of a physical, learning or other disability must be evaluated by the University of Pittsburgh’s Office of Disability Resource Services (ODRS). The ODRS will document and verify the student’s status and make recommendations for appropriate accommodations to the Associate Dean of Students.
If a student has a disability for which the student is or may be requesting accommodation, that student should contact both the office of Pitt Law’s Dean of Students (Alexandra (Allie) Linsenmeyer; email@example.com) and the University Office of Disability Resources and Services (“DRS”), 216 William Pitt Union, www.studentaffairs.pitt.edu/drs/, Phone 412-648-7890, Video Phone 412-228-5374, Fax 412-624-3346, as early as possible in the semester. DRS will verify the disability and determine reasonable accommodations for this course. The Associate Dean of Students will oversee the implementation of accommodations.
Students should not discuss exam accommodations with professors. The Associate Dean of Students and the Registrar will insure that any testing accommodations are provided through the DRS.
As in all classes at Pitt Law, students enrolling in this course are expected to comply with the University of Pittsburgh’s Student Code of Conduct, which may be accessed online here. Students are expected to comply with the University of Pittsburgh’s and the School of Law’s Guidelines on Academic Integrity, which are available at:
- http://provost.pitt.edu/sites/default/files/academic_integrity_guidelines.pdf (University of Pittsburgh) and
- http://law.pitt.edu/pp/integrity (Pitt Law)
CONTACTING PROFESSOR MADISON
Office hours are on Monday afternoons in Professor Madison’s Discord server from 3:00 p.m. to 4:30 p.m. and at other times by appointment. For meetings outside of regular office hours, you should always make an appointment via e-mail at firstname.lastname@example.org.
REQUIRED COURSE MATERIALS
The primary materials for the seminar are readings from Intellectual Property at the Edge: The Contested Contours of IP (Rochelle Cooper Dreyfuss & Jane C. Ginsburg eds., 2014). Each student should have ACCESS to a copy of that book.
Good access: Copies can be purchased at amazon.com, among other places. That option is expensive.
Better access: FREE ACCESS to the book is available via the University of Pittsburgh Library System. Go to library.pitt.edu and search for the title above. A free ebook version is available there.
Best access: Here is a direct link to the electronic version of the book. Pitt login/password is required if you are not using a Pitt-networked computer.
Certain optional materials are available via a TWEN page for this course, at Westlaw.
Any slides used in class will be posted afterward on this page or on the course homepage (as part of the online syllabus) or both.
Your grade for this course will be based on a single long research paper, described in great detail below.
In addition to the research paper, you are required to turn in brief reflection comments throughout the semester, again as described in detail below.
READING ASSIGNMENTS AND OUTLINE OF CLASSES
CLASS ONE, MONDAY, JANUARY 25:
- Read this Syllabus in its entirety. Come to class prepared to discuss one or more possible paper topics. Jane C. Ginsburg and Rochelle Cooper Dreyfuss, Editors’ Preface (pp. xvii – xviii)
- Carol M. Rose, Introduction: A Real Property Lawyer Cautiously Inspects the Edges of Intellectual Property (pp. 1 – 13)
- Stacey L. Dogan, Haelan Laboratories v. Topps Chewing Gum: Publicity as a legal right (pp. 17 – 38)
- Haelan Laboratories v. Topps Chewing Gum
CLASS TWO, MONDAY, FEBRUARY 1:
- Paper topic proposals are due prior to or at the beginning of class, by email. These should be not more than 250 words or one printed (double-spaced) page in length.
- Barton Beebe, The suppressed misappropriation origins of trademark antidilution law: The Landgericht Elberfeld’s Odol Opinion and Frank Schechter’s “The Rational Basis of Trademark Protection” (pp. 59 – 80)
- Read “The Rational Basis of Trademark Protection” on the Foundations of IP Law Seminar page on TWEN
CLASS THREE, MONDAY, FEBRUARY 8:
- Dev S. Gangjee, Spanish Champagne: An unfair competition approach to GI protection (pp. 105 – 129)
- Bollinger v. Costa Brava Wine Co. on the Foundations of IP Law Seminar page on TWEN
CLASS FOUR, MONDAY, FEBRUARY 15:
- Outlines of papers are due prior to or at the beginning of class, by email. The outline consists of a section by section and paragraph by paragraph statement of all topic sentences proposed for the paper. In addition, a list of all proposed research sources should be turned in prior to or at the beginning of class.
- Susy Frankel, “Ka Mate Ka Mate” and the protection of traditional knowledge (pp. 193 – 214)
- Ka Mate! Haka
CLASS FIVE, MONDAY, FEBRUARY 22:
- Jeanne C. Fromer, A legal tangle of secrets and disclosures in trade: Tabor v. Hoffman and beyond (pp. 271 – 294)
- Tabor v. Hoffman
CLASS SIX, MONDAY, MARCH 1:
- Lionel Bently, Patents and trade secrets in England: the case of Newbery v James (1817) (pp. 295 – 317)
- Newbery v. James on the Foundations of IP Law Seminar page on TWEN
CLASS SEVEN, MONDAY, MARCH 8:
- Katherine J. Strandburg, Legal but unacceptable: Pallin v. Singer and physician patenting norms (pp. 321 – 342)
- Pallin v. Singer on the Foundations of IP Law Seminar page on TWEN
CLASS EIGHT, MONDAY, MARCH 15:
- Ted Sichelman, Funk forward (pp. 361 – 381)
- Funk Bros. Seed Co. v. Kalo Inoculant Co.
CLASS NINE, MONDAY, MARCH 22:
- Rebecca Tushnet, Make me walk, make me talk, do whatever you please: Barbie and exceptions (pp. 405 – 426)
- Mattel v. Pitt
- Mattel v. MCA Records
- Mattel v. Walking Mountain Productions
CLASS TEN, MONDAY, MARCH 29:
- C. Scott Hemphill and Jeannie Suk, The Fashion Originators’ Guild of America: Self-help at the edge of IP and antitrust (pp. 159 – 179)
- LVL XIII Claims Louis Vuitton Copied its Design
- Louis Vuitton Soundly Defeats LVL XIII in Sneaker Trademark Lawsuit
- Antonio Brown Of LVL XIII On Working With Jason Derulo & Standing Out In The Market
- Antonio Brown’s Shoe Game Is Crazy [INTERVIEW]
CLASS ELEVEN, MONDAY, APRIL 5:
- Robert E. Spoo, The American Public Domain and the Courtesy of the Trade in the Nineteenth Century (Chapter 1 of Without Copyrights: Piracy, Publishing, and the Public Domain (New York: Oxford University Press, 2013)
CLASS TWELVE, MONDAY, APRIL 12:
- Bruce E. Boyden, Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer
- Daly v. Palmer
- (Optional) Oren Bracha, Commentary on Copyright Act Amendment 1856
- The first complete draft of the paper is due prior to or at the beginning of class, by email. This draft should contain all footnotes and should be proofread and Bluebooked as if it were the final version of the paper.
CLASS THIRTEEN, MONDAY, APRIL 19:
- Brian L. Frye, Invention of a Slave
- Student presentations.
LAST DAY OF FINAL EXAMS, THURSDAY, MAY 6:
The final version of the seminar paper is due, delivered to the Registrar’s Office at the law school not later than 12 noon on this date. Please *also* send an e-copy of the final paper to Professor Madison, and a copy of your presentation materials (slides), if you use them.
WORK EXPECTED OF STUDENTS
Each student in this seminar is required to keep and deliver to Professor Madison a weekly reflection comment that consists of their own reactions to and comments on each week’s (i) assigned readings; (ii) class discussions; and/or (iii) research and writing activities. The prompt for each comment should be “This week, I learned the following about my development as a lawyer,” or something analogous.
The comments can take any form (in other words, there are no format requirements) other than that each one should consist of a minimum of 250 words.
The comments will not be graded, but they are mandatory. They will be reviewed and assessed on a satisfactory/unsatisfactory basis.
Each comment should be turned in via the course page on TWEN.
The grade for the seminar will be based primarily on a single long (30-40 pp.) research paper consisting of a critical examination of the history and impact of a key precedent, in the mode of the materials that constitute its primary readings: a sustained historical exploration and analysis of a single leading older (pre-2000) case in intellectual property law.
The case chosen may be a US case or a non-US case.
Students will prepare four versions of the paper, two in outline form and two in fully elaborated (footnoted) form, and they will also be expected to prepare and deliver an oral presentation to the seminar based on their research.
The final paper must be a minimum of 30 pp. long [double-spaced] and a maximum of 40 pp. long.
Here are resources to consult when researching and drafting your outline and your manuscript:
- Detailed expectations for each of those four versions, and general guidelines for researching and writing the paper, are here.
- Students may also benefit from reading Professor Madison’s “Modern Legal Writing.”
- Because “outlining” a paper seems to scare students, here is a foolproof technique for producing a solid outline.
- Research? Here is a checklist of topics and strategies for researching the paper.
DUE DATES AND DEADLINES
A recap of paper deadlines (original version):
- Tuesday, February 1: Paper proposals are due.
- Tuesday, February 15: Outlines are due.
- Tuesday, April 12: First drafts are due.
- Thursday, Thursday, May 6: Final drafts are due.
With respect to deadlines, follow the dates listed above rather than the schedule listed in the guidelines.
The official course policy on due dates is this: There will be no extensions or exceptions to assignment deadlines. except in the case of rare, dire, and unanticipated emergency, and then only with the approval of the Associate Dean for Academic Affairs or the Vice Dean. Do not be late.
The pandemic addendum on due dates is this : Traditionally, I’m pretty strict about deadlines. This year, I’ll be accommodating for students who, for one good faith reason or another, may struggle with that policy. It’s more important that students succeed than that they get the work in precisely on time. That said, flexibility has to have some limits. The assignments in this class move along at a steady clip, and it’s important for practical reasons – my grading and commenting on the papers (outlines, etc.) as a batch, most of all – that the work product for each assignment be turned in essentially at the same time. Any student who expects to encounter a problem with a given due date should contact me directly as soon as that circumstance develops.
At the end of the semester, each student will give a brief live presentation of their research and paper to the full class. The character of the presentation and guidance for easy, good presentations will be shared during the semester.
Students are advised that few legal topics are better suited to “show and tell” than intellectual property law. Great presentations often feature specific, concrete, and colorful “objects” that illustrate the research.
The paper topic proposal is graded on a pass/fail basis.
The outline counts for 25% of the final grade.
The full draft counts for 45% of the final grade.
The final version of the paper counts for 30% of the final grade.
The final grade may be adjusted upward or downward based on the depth of the student’s efforts to revise the full draft of the paper in light of Professor Madison’s comments.
Seminar grades may also be adjusted upward or downward based on the quality of the student’s classroom performance and paper presentation, and they may be adjusted upward based on the quality of the student’s reflective comments.
As is customary for courses that are graded on the basis of students’ out of class work product rather than on the basis of final exams, papers will not be graded anonymously. Students should include their own names on the first page of all written work product used to satisfy the requirements of the seminar.
Papers written for this seminar may be used to satisfy the upper level writing requirement.
Work product should be turned in electronically, via the “Assignment Drop Box” at the Foundations of IP Law Seminar – Spring 2021 page at TWEN, on Westlaw, or via email to Professor Madison, as an attachment.
SUGGESTED CASES FOR PAPERS
Students are encouraged to develop their own proposals regarding cases to research. Leading cases included in intellectual property casebooks may be useful places to start.
Because this seminar has been offered in years past, certain cases have been covered by earlier students and are off-limits for purposes of the 2020 version of the seminar. Those cases are listed at the bottom of this page.
The following is a non-exclusive list of case suggestions:
- Bartsch v. Metro-Goldwyn-Mayer, Inc.
- Cheney Bros. v. Doris Silk Corp.
- Peter Pan Fabrics, Inc. v. Martin Weiner Corp.
- Roth Greeting Cards v. United Card Co.
- Williams Electronics, Inc. v. Artic International, Inc.
- Aro Manufacturing Co. v. Convertible Top Replacement Co.
- Bloomer v. McQuewan
- Brenner v. Manson
- Consolidated Electric Light Company v. McKeesport Light Company (the Incandescent Lamp Patent case)
- Dann v. Johnston
- Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Co.
- Lear v. Adkins
- Standard Industries, Inc. v. Tigrett Industries, Inc.
- Abercrombie & Fitch v. Hunting World
- Aunt Jemima Mills Co. v. Rigney & Co.
- Zatarain’s v. Oak Grove Smokehouse
- Borden’s Ice Cream Co. v. Borden’s Condensed Milk Co.
- Seabrook Foods, Inc. v. Bar-Well Foods, Ltd.
- Smith v. Chanel, Inc.
- Univ. of Pittsburgh v. Champion Prods. Inc.
- Vogue Ring Creations, Inc. v. Hardman
CASES THAT ARE OFF-LIMITS
Students in the Spring 2021 version of the seminar may not select any of the following cases for their papers, because students in earlier versions of the seminar have already written about them:
Papers written in 2020:
- Diamond v. Diehr
- Lotus Development Corp. v. Borland International, Inc.
- Pennock v. Dialogue
- Steinberg v. Columbia Pictures Industries, Inc.
Papers written in 2019:
- The Button Fastener Case
- Sid & Marty Krofft Television Productions v. McDonalds, Inc.
Papers written in 2018:
- Columbia Broadcasting System, Inc. v. Loew’s, Inc.
- Hoehling v. Universal City Studios, Inc.
- Motion Picture Patents Co. v. Universal Film Mfg. Co.
- Dispute concerning The First Half of My Life [Chinese case]
Papers written in 2017:
- Boston Professional Hockey Ass’n v. Dallas Cap & Emblem Mfg., Inc.
- Boyden Power-Brake v. Westinghouse Air-Brake
- Kamar International, Inc. v. Russ Berrie & Co.
- Motschenbacher v. R.J Reynolds Tobacco Co.
- Warner Brothers, Inc. v. American Broadcasting Companies, Inc.
Papers written in 2016:
- United States v. Univis Lens Co., Inc.
- Peabody v. Norfolk
Papers written in 2015:
- Ali v. Playgirl, Inc.
- Atari v. North American Philips Consumer Electronics
- Basevi v. Edward O’Toole Co.
- In re Selden
- Jollie v. Jacques
- Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.
- Winans v. Denmead
Papers written in 2013:
- National Comics Publications, Inc. v. Fawcett Publications, Inc.
- Nike, Inc. v. Rubber Manufacturer’s Association, Inc.
- Ideal Toys v. Kenner
- Sears, Roebuck & Co. v. Stiffel Co. and Compco Corp. v. Day-Brite Lighting Inc.
- Sheldon v. Metro-Goldwyn Pictures Corporation
- Stewart v. Abend
- United States v. Adams
Papers written in 2012:
- Funk Brothers v. Kalo Inoculant
- Hotchkiss v. Greenwood
- Mazer v. Stein
- O’Reilly v. Morse
- RCA Mfg. Co. v. Whiteman
- Twentieth Century Music Corp. v. Aiken
- Walt Disney Productions v. Air Pirates
Papers written in 2010:
- American Cotton Tie Co. v. Simmons
- Brandir International Inc. v. Cascade Pacific Lumber Co.
- Carson v. Here’s Johnny Portable Toilets, Inc.
- Continental Paper Bag Co. v. Eastern Paper Bag Co.
- Dallas Cowboys Cheerleaders v. Pussycat Cinema
- Dawn Donut v. Hart’s Food Stores
- Gilliam v. American Broadcasting Companies
- Kalem v. Harper Brothers
- Tilghman v. Proctor
Papers written in 2009:
- Apple Computer, Inc. v. Franklin Computer Corp.
- Burrow-Giles Lithographic Co. v. Sarony
- Inwood Labs., Inc. v. Ives Labs., Inc.
- Parke-Davis & Co. v. H. K. Mulford Co.
- Sega Enterprises Ltd. v. Accolade, Inc.
- Zacchini v. Scripps-Howard Broadcasting Co.