NOTE: This is the assignments page for the Spring 2015 three-credit IP class. If you are in the Summer 2015 one-credit IP Overview course, click here.
Preparation and the Harkness method
Casebook & assigned materials. Print out the relevant sections of your casebook and statutes book, along with any other notes or printouts you’ll need. As noted below, in order to foster attentive and focused group discussion, no technology may be used in class.
Preparation. Come to class prepared to discuss the materials as the teacher. The goal of the method is that in each class, students act as the instructors and the professor serves a less-central part of the discussion. I will explain this further when we meet.
Harkness student-oriented discussion. In preparation for class, consider how you might teach the materials. Come prepared to lead discussion using the Harkness method, in which each member of the class is a scholar who comes prepared to present the materials and to lead discussion. Prepare several discussion questions to share with the class on each reading.
- Boyle & Jenkins Casebook: James Boyle & Jennifer Jenkins, Intellectual Property: Law & The Information Society—Cases And Materials (2014). The full free Creative Commons PDF may be downloaded here. Individual chapters are available here. If you wish, you may purchase a printed paperback version of the casebook for low cost at Amazon.
- Statutory Supplement: Selected Statutes & Treaties for James Boyle & Jennifer Jenkins, Intellectual Property: Law & The Information Society—Cases And Materials (2014). The full free Creative Commons PDF is here. Amazon has a low-cost paperback version here.
- Boyle, The Public Domain: James Boyle, The Public Domain: Enclosing the Commons of the Mind (2008). The full, free Creative Commons PDF is available here.
WEEK 1 – JAN. 12 & 14
MONDAY, JAN. 12: Introduction to IP & The Harkness Method
- Syllabus, http://nathenson.org/syllabi/IP-syllabus.pdf. Read the syllabus carefully. This is a discussion-and-projects oriented class, with the goal of producing high-quality experiential work product. Laptops are not permitted because they interfere significantly with our ability to pay attention to one another.
- Carl Hoffman, What the Harkness Method is, JERUSALEM POST, Sept. 23, 2010, http://www.jpost.com/Local-Israel/Tel-Aviv-And-Center/What-the-Harkness-Method-is. This reading explains the Harkness method of learning, a pedagogy that places students at the forefront of the learning experience. As your instructor, I will take a secondary role in the day-to-day discussions.
- Boyle & Jenkins: pp. ix-xiii, 1-25 (ch. avail. here).
- Boyle, The Public Domain, pp. 1-16 (book available here).
WEDNESDAY, JAN. 14: Introduction (cont’d)
- Boyle & Jenkins: pp. 25-41 (ch. avail. here)
- Boyle, The Public Domain, pp. 17-41 (book available here)
- Additional (added Jan. 13) (I’ll discuss in class):
WEEK 2 – JAN. 19 & 21
MONDAY, JAN. 19: NO CLASS
- Martin Luther King Jr. Day, no classes
WEDNESDAY, JAN. 21: Introduction to Trademarks (requirements for protection)
- Reminder: We’ll start off with the remaining material, namely, discussion of INS v. AP. See the chart I handed out in class: How would each of the Justices come down on matters of Labor, Utilitarianism, and Spillovers?
- Boyle & Jenkins: pp. 107-116 (ch. avail. here)
- Boyle & Jenkins: pp. 117-40 (ch. avail. here)
- Statutory supplement, 15 U.S.C. § 1052(e), (f)
- Statutory supplement, 15 U.S.C. § 1127 (definitions “trademark,” “service mark”)
- Additional: Examples of marks (shown in class)
WEEK 3 – JAN. 26 & 28
MONDAY, JAN. 26: Trademarks (requirements for protection)
- Boyle & Jenkins: pp. 140-52 (ch. avail. here)
- See photos of marks here. Is THE WORLD’S GREATEST SANDWICH protectible as a mark? See also photos of a sign similar to the sign at issue in TrafFix.
- Handed out in Monday’s class:
WEDNESDAY, JAN. 28: Trademarks (grounds for refusing registration)
- We will wrap up Monday’s materials by discussing TrafFix. To help in your studies of functionality, also review the comparison of distinctiveness and non-functionality handed out on Monday.
- Boyle & Jenkins: pp. 153-75 (ch. avail. here)
- Statutory supplement, 15 U.S.C. § 1052 (Lanham Act § 2)
- After carefully reading Lanham Act § 2, review Monday’s handout on deceptive vs. misdescriptive marks.
- Practice assignment: see here for an application that was filed (and later abandoned) for OBAMA BIN LADEN. Prepare answers to the questions on that page.
WEEK 4 – FEB. 2 & 4
MONDAY, FEB. 2: Trademarks (likelihood of confusion)
- Only remaining old matter: chart on deceptive vs. misdescriptive marks. Consider how Lanham Act § 2 is relevant to this chart.
- Boyle & Jenkins: pp. 177-212 (ch. avail. here)
- For a version of what Doughney’s site looked at, look at its current hosting at http://mtd.com/tasty/.
- Note: I have posted a beta version of Project 1, which will be handed out on Monday. For an advance look at 2015 Project 1, see here.
WEDNESDAY, FEB. 4: Trademarks (defenses)
- Any remaining materials from prior class.
- Boyle & Jenkins: pp. 213-230 (ch. avail. here)
- In preparation for Project 1, choose a mark along with goods or services. Be prepared to tell group what your mark & goods/services are.
- INSTRUCTIONS: You will create a trademark or service mark for your client Acme, Inc., a fictional company in Dania Beach with limited financial resources. To keep searching manageable, your mark must be a typed (i.e., word) mark and not a stylized mark or design. You should select goods and/or services for the mark. Do not conduct any searching prior to selecting your mark. Once you select your mark, you are stuck with it! If you are not certain whether or not I will approve your proposed mark, come to class with back-ups. Because the purpose of the assignment is to consider potential conflicts, do not coin a mark that will easily pass the knock-out search (such as XZZMQ@17 or ZRGGHAXLY). Assume that the client’s president is a lawyer and is familiar with trademark law.
WEEK 5 – FEB. 9 & 11
MONDAY, FEB. 9: Trademarks searching
- Search applications and registrations at USPTO using TESS (this is the main tool you will use in searching on the USPTO website for today’s assignment)
- Acceptable Identification of Goods and Services Manual (you can use this for today’s assignment to explore which International classes may apply to your goods/services and related goods/services)
- Do: pursuant to the instructions in Project 1, come to class prepared to discuss your search strategy and what you have found so far. The purpose of this is to allow each of us to give feedback to one another in order to improve our search strategy.
- Added (Feb. 8, will hand out Feb. 9): Trademark knock-out search: scoring criteria
WEDNESDAY, FEB. 11: Trademarks (dilution, cyberpiracy)
- Boyle & Jenkins: pp. 241-269 (ch. avail. here)
- Uniform Domain Name Dispute Resolution Policy
- To assert trademark and other IP rights regarding a domain name and corresponding website, it’s important to be able to research who the “registrant” is and how the site’s content is hosted. Do the following:
WEEK 6 – FEB. 16 & 18
MONDAY, FEB. 16: Presidents Day
- No class
TUESDAY, FEB. 17: Copyrights (introduction)
- Go to your Monday classes
- Boyle & Jenkins: pp. 271-296 (ch. avail. here)
- As the casebook suggests, go to the Copyright Office website at http://www.copyright.gov. Explore. See how you can search registrations, file applications for registration, and find information of interest. Note the existence of helpful Circulars.
WEDNESDAY, FEB. 18: Copyrights (subject matter)
- Boyle & Jenkins: pp. 297-327 (ch. avail. here)
FRIDAY, FEB. 20: Project 1 due
- PROJECT 1 (TRADEMARK SEARCHING) IS DUE 5PM EST on Friday, February 20. Either email it to Professor Nathenson at firstname.lastname@example.org, or hand in hard copies to Professor Nathenson or faculty secretaries (Mariela Torres or Karla Garcia) in the administrative assistants suite near the faculty offices.
WEEK OF FEB. 23 & 25: SPRING BREAK
SPRING BREAK, NO CLASSES!
WEEK 7 – MAR. 2 & 4
MONDAY, MAR. 2: Copyrights (subject matter)
- As you know, our last class was cancelled due to illness. We will do the assignment originally scheduled for Feb. 18 (noted below)
- Boyle & Jenkins: pp. 297-327 (ch. avail. here)
WEDNESDAY, MAR. 4: Copyrights (subject matter); The Internet Threat
- Both of these readings are relevant to Project 2.
- Read this first: Boyle, The Public Domain, pp. 54-82 (book available here). Be prepared to discuss the so-called “Internet Threat.”
- Read this second: Boyle & Jenkins: pp. 337-63 (ch. avail. here). Be prepared to discuss the cases and doctrines. Read statutes noted in the readings, including section 101 (definitions of “pictorial, graphic, and sculptural works” and “useful article”) and section 102(b).
- Handed out in class: Useful Articles analysis
- Further readings of interest (not assigned):
- Oracle, JAVA API Specifications
- Brief of Amici Curiae Intellectual Property Professors in Support of Grant of Petition, Google Inc., v. Oracle America, Inc., No. 14-410 (U.S. filed Nov. 7, 2014)
- SCOTUS docket for petition in Google v. Oracle
- Stephen Shankland, Android, Java, and the tech behind Oracle v. Google (FAQ), cNet, April 20, 2012.
WEEK 8 – MAR. 9 & 11
MONDAY, MAR. 9: Copyrights (subject matter, infringement)
- Project 2. Regarding Project 2:
- Bring to class any questions you may have about Project 2. The assignment memo can be found here. The scoring criteria can be found here. Review both documents very carefully.
- Any students who were absent last week should also be sure they read the Useful Articles analysis passed out last week. It may be relevant to Project 2.
- Old matter. Remaining old matter: we will start with the Lotus and Oracle cases from last week. Because the technology in Oracle may be confusing to non-programmers, last week’s assignment now lists optional readings regarding the Java API as well as an amicus brief regarding a pending cert petition in Oracle. There is a very good chance that SCOTUS will grant review in the Oracle case, setting up a landmark case on copyright and software.
- New reading: 106 rights. Today’s new matter is on copyright infringement.
- Be prepared to identify which of the section 106 exclusive rights our client’s opponent may be using (and without authorization!)
- 17 U.S.C. 106
- 17 U.S.C. 101 (definitions of “audiovisual works,” “computer program,” “copies,” “derivative work,” “display,” “literary work,” “motion picture,” “perform,” “publicly,” and “sound recordings”). These definitions will help flesh out the scope and meaning of the section 106 rights.
- Boyle & Jenkins: pp. 381-389, 407-422 (ch. avail. here).
- Not assigned, but of interest. You can use the Music Copyright Information Resource to compare the tracks from the music cases in our casebook.
WEDNESDAY, MAR. 11: Copyright (fair use; first sale)
- Defenses? Start considering which defenses the Project 2 opponent might rely upon.
- C&D samples. Search online to find at least one example of a real-world cease-and-desist (“C&D”) letter that you believe might be a useful template for your C&D for Project 2. Bring it to class. Also bring the URL so that we can view it onscreen. FYI, you can find C&D templates and generators here, here, here, here, and here. As T-Cubed “associates,” remember that you can’t just regurgitate pre-existing language, so it is your job to modify language to suit a client’s needs, the facts, and the law.
- Casebook. Boyle & Jenkins: pp. 423-38, 440-64 (ch. avail. here).
WEEK 9 – MAR. 16 & 18
MONDAY, MAR. 16: Copyright (fair use)
- We will start off with Campbell and Suntrust (last Wed. cases), and then move onto new materials. P.S., If you missed Monday’s class, please be aware that I handed out a draft of Elements of a cease-and-desist letter a/k/a how NOT to be an IP gorilla. Additionally, I finalized the handout, which is posted here.
- Boyle & Jenkins: pp. 475-86, 513-14 (ch. avail. here).
- Field v. Google
- For further explanation of how Robots.txt files work, read this.
WEDNESDAY, MAR. 18: Copyright (secondary liability; digital copyright)
- We will start with the Field case from Monday’s assignment, then move into new materials.
- Boyle & Jenkins: pp. 515, 517-46 (ch. avail. here).
- 17 U.S.C. 512
WEEK 10 – MAR. 23 & 25
MONDAY, MAR. 23: Copyright (hot topics in digital copyright & enforcement)
- Meetings: During this week and next, I will schedule appointments so that everyone can meet with me individually to do two things:
- Personal feedback on Project 1 and an opportunity for any follow-up questions you might have, such as reworking Project 1 for a portfolio.
- Any questions you may have regarding Project 2. Come to the meeting with: a) your developing case file, particularly documentation; b) your thoughts regarding your cease & desist letter; c) your thoughts regarding the organization and substance of your memo. My goal is to help you spend your time on the most important issues.
- The question for today: In this digital era, is fair use expanding or contracting?
- Readings for today:
- The reality of non-judicial enforcement: Check out Google’s most recent Transparency Report. Start with the Copyright page and explore.
- Take-down notices: Lenz v. Universal Music. You can see the video at issue here.
- Content ID: read & view materials at this link: How Content ID Works
- The MOA: Read pp. 1-2, 4-14 of the Memorandum of Understanding between copyright owners and Internet Service Providers. For additional information, go to the Center for Copyright Information website.
WEDNESDAY, MAR. 25: Discussion on Project 2
- Laptops or electronics permitted today.
- Your assignment is to be prepared to discuss your progress on Project 2, to discuss, and to ask questions.
- If you haven’t watched the episode yet, be sure to do so before class.
- Make sure that you have done factual research, such as determining the nature of any potential copyright infringement by the network, and identifying any potential additional defendants for copyright or trademark infringement.
- Be prepared to ask questions and to discuss matters such as:
- Facts you have found.
- How to document online activities.
- Information you may need from me or the client.
- Legal issues that you think should be discussed in your client memo.
- Issues of organization regarding your documentation, your memo, and your case file.
- Memo prioritization matters, such as determining which issues are irrelevant, which are minor, and which may require deeper treatment.
- Strategy, structure, claims, and demands for your draft C&D.
- Anything else that is worthy of discussion.
WEEK 11 – MAR. 30 & APR. 1
MONDAY, MAR. 30: Introduction to patents
- 17 U.S.C. 100 and 101
- Boyle & Jenkins: pp. 631-49 (ch. avail. here).
- Supplemental materials (not required but of interest):
- Patent 7,849,784 for coffee or tea filtering press (the Aeropress)
- Aeropress page from Aerobie.com (inventor site)
- Aeropress for sale on Amazon.com
- Aeropress.com (Canadian vendor)
WEDNESDAY, APR. 1: NO CLASS
- Friday classes meet.
- No class (Easter Break April 2-3).
- PROJECT 2 (COPYRIGHT) IS DUE today, 5PM EST on Wednesday, April 1. Either email it to Professor Nathenson at email@example.com, or hand in hard copies to Professor Nathenson or faculty secretaries (Mariela Torres or Karla Garcia) in the administrative assistants suite near the faculty offices.
WEEK 12 – APR. 6 & 8
MONDAY, APR. 6: Reading patents
WEDNESDAY, APR. 8: Patentable subject matter
- Read details on project 3 options
- Boyle & Jenkins: pp. 651-86 (ch. avail. here).
- Does the DNA/cDNA distinction in Myriad make your head spin? Here are a few resources that may help: BoingBoing, Slate. Here’s a YouTube video from law prof David Schwartz discussing the tech and issues in Myriad.
- Not in depth, but still look at these for further insights into the readings:
WEEK 13 – APR. 13 & 15
MONDAY, APR. 13: Patent subject matter; utility
- Boyle & Jenkins: pp. 686-95 (ch. avail. here).
- Boyle & Jenkins: pp. 697-717 (ch. avail. here).
- Carefully read the patent of our T-Cubed client, U.S. Patent No. Continuation U.S. Patent No. 8,046,721; also read the patent of a potential opponent, U.S. Patent No. 8,095,879.
WEDNESDAY, APR. 15: Patent novelty
- See the pre-AIA, post-AIA, and redline versions of 35 U.S.C. 102 here.
- Table from Intellectual Property Owners Association (IPO) comparing pre- and post-AIA provisions of U.S. patent law
- Boyle & Jenkins: pp. 719-43 (ch. avail. here).
WEEK 14 – APR. 20 & 22
MONDAY, APR. 20: Patent non-obviousness
- See the pre-AIA, post-AIA, and redline versions of 35 U.S.C. 103 here.
- Boyle & Jenkins: pp. 745-71 (ch. avail. here).
WEDNESDAY, APR. 22: Infringement; remedies
- 35 U.S.C. § 271, 35 U.S.C. § 283, 35 U.S.C. § 284, 35 U.S.C. § 285
- Read the patent at issue in Larami
- here) 27 U.S.P.Q.2d 1280 (E.D. Pa. 1993) (the patent at issue in Larami is available
- Remedies: eBay Inc. v. MercExchange, L.L.C.
WEEK 15 – APR. 27 & 29
MONDAY, APR. 27: Trade secrets
- Florida’s Uniform Trade Secrets Act, Florida Stat. Ann. §§ 688.001 to 688.009 (read all sections)
- Rockwell Graphic Systems Inc. v. DEV Ind., Inc. (7th Cir. 1991)
- E.I. duPont deNemours & Co. v. Christopher (5th Cir. 1970)
WEDNESDAY, APR. 29: Right of publicity; conclusion
- Florida’s Right of Publicity statute, Florida Stat. Ann. § 540.08
- White v. Samsung Electronics Am., Inc. (9th Cir. 1993)
- Boyle & Jenkins: pp. 773-84 (ch. avail. here).
FRIDAY, MAY 1: Project 3
- PROJECT 3 (STUDENT’S CHOICE: PATENT OPINION or REVISIONS OF BOTH PROJECT 1 & PROJECT 2) IS DUE 5PM EST on Friday, May 8. Details on the assignment will be posted later. Either email it to Professor Nathenson at firstname.lastname@example.org, or hand in hard copies to Professor Nathenson or faculty secretaries (Mariela Torres or Karla Garcia) in the administrative assistants suite near the faculty offices.
Last updated May 25, 2015 (adding link to IP Overview)