Fall 2007 Course
Syllabus
Date: August 13, 2007
Professor Kevin D.
Ashley
Office:
Room 525 Law Building,
Room 519 Learning Research and
Email: ashley@pitt.edu
Secretary: Ms.
Patty Blake Phone:
(412) 648-1333
Office: Room 514B
Course description and rationale: Intellectual property is an increasingly significant
topic in the Information Age. It is designed to encourage the production of
certain forms of information by granting property rights to the producers,
enabling them to appropriate the value of the information they produce. This
course surveys state intellectual property law (i.e., rights in undeveloped
ideas, unfair competition, trade secrets, and right of publicity) and federal
intellectual property law, including trademark, patent, and copyright law.) We
examine some of the ramifications of recent technological developments on
intellectual property law and some of the problems of international protection
of intellectual property.
The purpose of this course is to provide students a
general introduction to and survey of intellectual property law. It is
appropriate both for students who may not plan to take other courses in
intellectual property in law school as well as students who do. It is a
required course for the Certificate in Intellectual Property and Technology
Law.
Credit hours
and meeting times: Three credits.
Tues., Wed., Fri. 11:50
AM – 12:40 PM; Room 107,
TWEN Course Website: There is a TWEN website for this course,
Intellectual Property 5260, at lawschool.westlaw.com.
You will need to use your Westlaw password to access the site. Beside the
syllabus, the website will contain materials for distribution and a discussion
board.
Required texts:
Email distribution list: When you first access the TWEN course
website, your email address will be added to the distribution list on the TWEN
page. There will be a test of the email distribution list during the first week
in class. Students are responsible for double-checking that they are receiving
class emails.
Office hours: Prof. Ashley will usually be available in
his office, Room 525, every class-day morning at 10:45 AM. Students may also
set up appointments via email to meet with him at other times.
Course
objectives: Upon successfully completing this course, students will understand:
(1) the differences between protecting property interests in ideas and
information as opposed to in goods or real estate.
(2) the state intellectual property law that serves as a backdrop for
federal intellectual property protection.
(3) the differences between federal copyright, patent, and trademark
protection.
(4) the constitutional and statutory sources of federal intellectual
property law.
(5) the relationship between state and federal intellectual property law,
and the extent to which federal IP law preempts state IP law.
(6) basic information about how to obtain, license, and enforce
copyright, patent, and trademark protection.
(7) how to apply legal
knowledge about intellectual property law to analyze concrete problem
situations.
(8) how to analyze problems that may involve more than one kind of (state
and federal) intellectual property law and to determine which law best protects
what interests.
(9) the public
policies at stake in the federal and state systems of intellectual property
law, how well these policies are being served and the tradeoffs among them, and
how these policies might be better served.
Problem scenarios: Two major goals of this course are to help students to apply the legal knowledge they learn about intellectual property law to analyze concrete problem situations, and to become accustomed to explaining their analyses orally. To that end, throughout the semester, the class will focus on twelve problem scenarios. The texts of the twelve problems are available on the TWEN course website (subject to a password that will be provided in class). The problems are designed to explore legal issues raised by a particular area of IP law under discussion in concrete fact situations. Often, a problem also illustrates how different areas of IP law apply to different aspects of the same fact situation, or illustrate how these different areas of IP law conflict (e.g., as a matter of federal preemption of state law.)
All
students should carefully read and think through the problems before the date
on which they are to be discussed in class. Prof. Ashley will lead the
discussion of the first few problems until panels have been assigned. Student
panels will lead the discussions of all of the subsequent problems. After the
seating chart is constructed, the class will be broken down into panels, and a
list of panel participants and their email addresses will be posted on the TWEN
course website. As the semester progresses, a few days before each problem is
scheduled to be discussed, Prof. Ashley will assign the problem to a panel for
discussion. He will appoint two panel leaders to organize and lead the
discussion. In consultation with the panel (either after class, via email, or
via the Discussion board on the TWEN course website), the leaders should assign
issues to panel members for discussion, and panel members should consider and
coordinate what they will say.
At various points
in the semester, Prof. Ashley will place multiple copies of his answers to the
problems discussed so far at the Reserve Desk.
Evaluation: There will be two
examinations. A midterm exam will cover the first third of the course material
(i.e., state intellectual property law) and count for approximately 25% of the final
grade. A final exam will focus primarily on the second two thirds of the course
material (i.e., federal intellectual property law) but may cover relevant state
intellectual property law, as well. The final exam will count for approximately
75% of the final grade.
Mid-term
exam: The mid-term exam will
be a modified open-book, take-home examination. It will comprise one essay-type
question, and students will be limited to writing no more than three
double-spaced or 1.5-spaced typed pages. The exam will be distributed for
pick-up at the Registrar’s Window on Friday, September 28, 2007 from noon
to 3:00pm. By 3:00 pm on Monday, October 1, 2007, you must return a physical
copy to the Registrar’s Window and submit an electronic copy via a website
called the SWoRD program. The SWoRD
program will distribute anonymous copies of each student’s answer to a
small set of (about five) other students in the class for peer-review. As a
result, each student will receive reviews from about five peers, and will also
review answers of about five other students. For each exam to review, the peer
reviewer will write a brief commentary evaluating the exam according to three
criteria. The criteria focus on applying
the legal knowledge learned about
intellectual property law to analyzing concrete problem situations. The
peer-review commentaries will be sent to the original authors and to Prof.
Ashley. Meanwhile, Prof. Ashley will grade the mid-term answers independently
of any student peer-reviews and preserving anonymity of authors.
The purpose of
the mid-term exam and peer-review exercise is to focus students on the
importance and meaning of applying
legal knowledge to analyzing concrete problems. In addition, students will
receive more exam feedback -- from the instructor and from peer-reviewers --
than is typical in a law school course.
A lack of good-faith participation in the
peer-reviewing process as evidenced by a failure to provide thoughtful and
constructive peer reviews may result in a lower grade on the mid-term.
Final
exam: The final exam will be a modified
open-book, take-home examination. It is scheduled for pick-up on Monday,
December 17 and Tuesday, December 18, 2007. The examination must be returned
within 24 hours. Answers must be typewritten and must comply with specified
constraints on number of pages, minimum fonts, and margins.
Classroom
participation is also very
important in this course. In addition to the panels for discussing problems,
Prof. Ashley may assign particular students responsibility for being prepared
to discuss individual readings.
Attendance: The
Disabilities requiring
accommodation: If you have
a disability for which you are or may be requesting accommodation, you should
contact the Office of Student Affairs in the
Due to the anonymous grading policy,
students should not discuss exam accommodations with professors. The Office of
Student Affairs and the Registrar will insure that any testing accommodations
are provided through the DRS.
Schedule of Classes,
|
Date |
Reading
Assignment |
Topic |
|
8/28, T |
|
Course Introduction
|
|
8/29, W |
Prob. 1 |
Prob. 1 Ace
Breweries |
|
8/31, F |
pp. 1 – 35 |
Part 1: Intellectual Property Law in
Context I. The Sources and Limits of Intellectual
Property Law Eldred v.
Ashcroft, p. 1 II. The Nature and Functions of
Intellectual Property Law |
|
9/4, T |
pp. 36 –
61 Prob. 2 |
Part 2: State
Intellectual Property Law I. Rights In
Undeveloped Ideas A. Theories
of Protection Sellers v.
American Broadcasting Co., p. 36 Masline v. N.Y., N.H. & H.R., p. 56 Nadel v. Play-By-Play Toys & Novelties,
Inc. p. 49 Lueddecke v. Chevrolet Motor Co., p. 43 Prob. 2
Abacus Corp. |
|
9/5, W |
pp. 61 - 68 Prob. 3 |
Prob. 2
Abacus Corp. B. Limits of
Protection: The Place of Ideas in the Competitive Plan Aronson v. Quick
Point Pencil, p. 61 Prob. 3 Cutrate Corp. |
|
9/7, F |
pp. 68 –
92 |
Prob. 3 Cutrate Corp. II. Unfair
Competition A.Theory of Protection 1. Passing
Off and Secondary Meaning William R.
Warner v. Ely Lilly & Charcoal Steak
House of Galt House v.
Home Supply Co., p. 74 2. Zone of
Expansion The Sample, Inc.
v. Porrath, p. 76 3.
Dilution Mead Data
Central v. |
|
9/11, T |
pp. 92 - 118 |
4.
Misappropriation Board of Trade
of City of B. Limits of
Protection 1. Personal
Interests: Rights in Names David B. Findlay,
Inc. v. 2. Economic
Interests: The Place of Unfair Competition in the Competitive Plan Crescent Tool v.
Kilborn & Bishop, p. 107 Sears, Roebuck
v. Stiffel, p. 109 Compco v. Day-Brite
Lighting, p. 112 |
|
9/12, W |
Prob. 4 |
Prob. 4
Yogurt Corp. of |
|
9/14, F |
pp. 119 - 134 Prob. 5A |
III. Trade
Secrets A. Theory of
Protection Metallurgical
Industries Inc. v. Fourtek, Inc., p. 119 Prob. 5A
Dante Dressers |
|
9/18, T |
pp. 135 –
162 |
E.I.duPont deNemours v. Christopher,
p. 135 B. Limits of
Protection 1. Personal
Interests: Restraints on Post-Employment Competition. Reed Roberts v. Strauman, p. 155 Pepsico v. |
|
9/19, W |
pp. 162 –
177 Prob. 5B |
Prob. 5B
Dante Dressers 2. Economic Interests:
The Place of Trade Secrets in the Competitive Plan Kewanee Oil v. Bicron, p. 162 |
|
9/21, F |
pp. 178 - 215 |
IV. Right of
Publicity A. Theory of
Protection White v. Samsung
Electronics B. Limits of
Protection Comedy III
Productions, Inc. v. Gary Saderup, Inc. p. 202 |
|
9/25, T |
Prob. 6 |
Prob. 6 Acme
Pictures |
|
9/26, W |
pp. 216 - 219 pp. 220 - 241 |
Part 3.
Federal Law of Intellectual Property Note:
Jurisdiction and Courts A.
Requirements for Protection 1. Use and
Use in Commerce Blue WarnerVision Entertainment, Inc. v. Empire of
Carolina, Inc., p. 230 Lucent
Information Management, Inc. v. Lucent Techonologies,
Inc., p. 235 Trademark
Abandonment, p. 238 |
|
9/28, F |
pp. 241 –
267 |
2.
Distinctiveness and Related Statutory Standards: 15 USCA 1052 King-Seeley Thermos
v. Aladdin Industries, p. 241 In re NAD, Inc.
p. 253 Prob. 7A
Servo Company of In re Loew’s Theatres, p. 259 In re Budge
Manufacturing, p. 250 |
|
9/28-10/1 |
|
Take
home Mid-term exam |
|
10/2, T |
pp. 267 –
299 |
3. Statutory
Subject Matter Prob. 7A
Servo Company of In re
Advertising & Marketing Development, Inc. p. 267 Midwest Plastic
Fabricators, Inc. v. Underwriters Laboratories, Inc., p. 272 Supplemental
Register, Administrative Procedures, Incontestability |
|
10/3, W |
pp. 299 –
322 |
C. Rights and
Remedies 1. Rights a. Geographic
Boundaries United Drug v. Rectanus, p. 299 Dawn Donut v.
Hart’s Food Stores, p. 300 Prob. 7B
Servo Co. of Moseley v. V
Secret Catalogue, Inc., p. 310 |
|
10/5, F |
pp. 322 –
337, 347 - 375 |
2.
Limitations on Rights New Kids on the
Block v. News America Publishing, Inc., p. 322 3. Remedies (omitted) 4. Secondary Liability Hard Rock Café
Licensing v. Concession Services, p. 347 D.
Infringement Pickle-Rite v. McGregor-Doniger v. Drizzle, p. 361 Indianapolis
Colts, Inc. v. Metropolitan Baltimore Football Club Ltd., p. 370 |
|
10/9, T |
pp. 376 –
393 Prob. 8 |
E. Federal
Unfair Competition Law: Lanham Act Sec. 43(a) Two Pesos v.
Taco Cabana, p. 376 Prob. 8 Gasco |
|
10/10, W |
pp. 394 –
415 |
II. Patent
Law A.
Requirements For Protection 1. Statutory
Subject Matter Diamond v. Chakrabarty, p. 397 State Street
Bank & Trust Co. v. Signature Financial Group, Inc., p. 403 |
|
10/12, F |
pp. 415 –
442 |
2. Statutory
Standards a. Section
102: Novelty and the Statutory Bars Application of Borst, p. 415 Pfaff v. Wells
Electronics, p. 418 TP Laboratories
v. Professional Positioners, p. 424 |
|
10/16, T |
pp. 442 -
487 |
b. Section
103: Nonobviousness Graham v. John Deere,
p. 442 Stratoflex v. Aeroquip,
p. 450 In re Deuel, p.
461 c. Sections
102 and 103 in Concert: What is Prior Art? Hazeltine Research v. Brenner, p. 468 Application of
Foster, p. 471 d.
Utility Brenner v.
Manson, p. 477 e. Inventorship |
|
10/17, W |
p. 487 –
492 Prob. 9A p. 509, n.2 pp. 511 - 513 |
f. Enabling
Disclosure W.L. Gore &
Assoc. v. Garlock, Inc., p. 487 (skim) Prob. 9A John Elroy Publication of patent applications Fraud on patent office |
|
10/19, F |
pp. 513 -
533 pp. 550 –
569 |
C. Rights and
Remedies 1. Rights Paper Converting
Machine v. Magna-Graphics, p. 513 Wilbur-Ellis v. Kuther, p. 522 D.
Infringement Eibel Process v. Minn. & Ont. Paper, p.
551 Graver Tank v. Linde Air Products, p. 551 Warner-Jenkinson v. Hilton Davis Chemical, p. 558 |
|
10/23, T |
pp. 569 –
584 Prob. 9B |
D.
Infringement Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., Ltd. p. 569 Prob. 9B John
Elroy |
|
10/24, W |
Prob. 9B |
Prob. 9B John
Elroy |
|
10/26, F |
Prob. 10 |
Prob. 10
Ardmore Corp. |
|
10/30, T |
pp. 585 - 604 |
III.
Copyright Law A.
Requirements for Protection 1.
Formalities a. Notice Hasbro Bradley
v. Sparkle Toys, p. 587 |
|
10/31, W |
pp. 604 –
623 |
2. Statutory
Subject Matter Copyright Law
Revision, H.R. Rep. No. 94-1476, p. 604 Baker v. Sheldon v.
Metro-Goldwyn Pictures, p. 618 3. Original
Expression a. The Originality Standard Bleistein v. Donaldson Lithographing, p. 618 |
|
11/2, F |
pp. 623 –
637 |
b. The
Originality Standard Applied Feist Publications v. Rural Telephone Service,
p. 623 Miller v. |
|
11/6, T |
pp. 637 –
656 |
B. Ownership
1. Works For Hire and Joint Works Copyright Law
Revision, H.R. Rep. No. 94-1476, p. 637 Community for
Creative Non-Violence v. Reid, p. 639 Erickson v.
Trinity Theatre, Inc., p. 646 |
|
11/7, W |
pp. 656 –
674 |
2. Transfer
and Term New York
Times Co., Inc. v. Tasini, p. 656 Copyright Law
Revision, H.R. Rep. No. 94-1476, p. 665 |
|
11/9, F |
pp. 674 –
685 |
C. Rights and
Remedies 1. Rights a. The
Statutory Rights Copyright Law
Revision, H.R. Rep. No. 94-1476, p. 674 Mirage Editions
v. Lee v. A.R.T.
Co., p. 681 |
|
11/13, T |
pp. 685-701 |
Russell v.
Price, p. 691 b.
Secondary Liability Fonovisa v. Cherry Auction, p. 695 |
|
11/14, W |
pp. 701 -
733 |
c. Fair Use Harper &
Row, Publishers v. Nation Enterprises, p. 702 |
|
11/16, F |
pp. 733 - 754 |
d. Exclusive
Rights and New Technologies Sony Corp. of |
|
11/20, T |
pp. 767 –
796 |
D. Infringement Arnstein v. Porter, p. 767 Nichols v.
Universal Pictures Corp., p. 770 Selle v. Gibb, p. 776 Steinberg v. |
|
11/21-11/23 |
No class |
Thanksgiving |
|
11/27, T |
pp. 796 –
816 |
E. Rights
Beyond Copyright: Moral Right Gilliam v.
American Broadcasting Companies, Inc., p. 796 |
|
11/28, W |
pp. 816 - 825 |
Preemption
of State Law |
|
11/30, F |
Problems 11a, b,
12 |
Problems
11a,b Giles Naylor Problem 12
Cooking for Runners |
|
12/4,
T |
Problems 11a, b,
12 |
"
" |
|
12/5,
W |
|
To
be announced |