Fall 2009 Course
Syllabus; version 1.2
Date: October 5, 2009
Professor Kevin
D. Ashley
Office:
Room 525
Room 519 Learning Research and
Phone:
(412) 648-1495; (412) 624-7496
Email:
ashley@pitt.edu
Secretary: Ms. Patty Blake
Office: Room 514B
Phone: (412)
648-1333
Email: pblake@pitt.edu
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.
Wed., Thur. 10:30 AM
– 11:45 AM; Room G12,
TWEN Course Website: There is a TWEN website for this course,
Intellectual Property 5260, at lawschool.westlaw.com.
In order to access the site, you will need to use your Westlaw password and a
course password to be distributed in class. 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 9:45 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 fifteen problem scenarios. The texts of the problems will be 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 quarter of the course
material (i.e., state intellectual property law and part of federal trademark
law) and count for approximately 25% of the final grade. A final exam will
cover all of the course material and 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 four
double-spaced or 1.5-spaced typed pages. The exam will be distributed for
pick-up at the Registrar’s Window on Friday, October 2, 2009 from noon to
3:00pm. By noon on Monday, October 5, 2009, students must return a physical
copy to the Registrar’s Window. Students will
also need to submit an electronic copy via a peer-review website by the later
deadline indicated on that website. See instructions here.
The peer-review website will distribute anonymous copies of each
student’s answer to a small set of other students in the class for
peer-reviewing. As a result, each student will receive reviews from peers, and
will also review answers of some other students. For each exam to review, the
peer reviewer will write a brief commentary evaluating the exam according to
Review Criteria that are now available in the Course Materials link of the TWEN
course website. 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 14 and
Tuesday, December 15, 2009. 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 |
|
8/26, W |
Prob.
1 |
Course Introduction
Prob. 1 Ace
Breweries |
|
8/27, Th |
Prob. 1 pp. 1 – 35 |
Prob. 1 Ace
Breweries Part 1: Intellectual Property Law in
Context I. The Sources and Limits of Intellectual
Property Law U.S.
Constitution, Article I, Section 8 Eldred v.
Ashcroft, p. 1 II. The Nature and Functions of
Intellectual Property Law |
|
9/2, W |
pp. 36 –
64 Prob. 2 |
Part 2: State
Intellectual Property Law I. Rights In
Undeveloped Ideas A. Theories
of Protection Sellers v.
American Broadcasting Co., p. 36 Notes, pp. 41-43 Masline v. N.Y., N.H. & H.R., p. 58 Nadel v. Play-By-Play Toys & Novelties,
Inc. p. 49 Lueddecke v. Chevrolet Motor Co., p. 43 Notes, pp. 57-63 B. Limits of Protection: The Place of
Ideas in the Competitive Plan pp. 63-64 Prob. 2
Abacus Corp. |
|
9/3, Th |
Prob. 3 pp. 65 –
93 |
B. Limits of
Protection: The Place of Ideas in the Competitive Plan Prob. 3 Cutrate Corp.. II. Unfair
Competition A.Theory of Protection 1.
Misrepresentation 2.
Misappropriation Board of Trade
of City of Notes, p. 73-76 III. Trade
Secrets A. Theory of
Protection Metallurgical
Industries Inc. v. Fourtek, Inc., p. 77 Notes, pp. 88-93 |
|
9/9, W |
Prob. 5A pp. 94 –
122 Prob. 5B |
Prob. 5A
Dante Dressers E.I.duPont deNemours v.
Christopher, p. 94 Notes, pp.
98-104 B. Limits of
Protection 1. Personal
Interests: Restraints on Post-Employment Competition. Wexler v.
Greenberg, p. 104 Reed Roberts v. Strauman, p. 114-117 Pepsico v. Notes, p.
117-121 2. Economic
Interests: The Place of Trade Secrets in the Competitive Plan pp. 121-122 Prob. 5B
Dante Dressers |
|
9/10, Th |
pp. 123 – 162 Prob. 6 |
IV. Right of
Publicity A. Theory of
Protection White v. Samsung
Electronics Notes, p.
140-146 B. Limits of
Protection Comedy III
Productions, Inc. v. Gary Saderup, Inc. p. 146 CBC
Distribution, p. 157 Notes, p.
159-162 Prob. 6 Acme
Pictures |
|
9/16, W |
Prob. 6 pp. 163 - 190 |
Part 3.
Federal Law of Intellectual Property Note:
Jurisdiction and Courts A. Theories of Protection William R.
Warner v. Ely Lilly & A.
Requirements for Protection 1. Use and
Use in Commerce Blue WarnerVision Entertainment, Inc. v. Empire of
Carolina, Inc., p. 182 Notes, p.
186-190 |
|
9/17, Th |
pp. 190-232 Prob. 7A |
2. Distinctiveness and Related Statutory
Standards: 15 USCA 1052 King-Seeley
Thermos v. Aladdin Industries, p. 197 Notes, p.
201-206 Note: Trademark
Abandonment, p. 206-208 In re Budge
Manufacturing, p. 209 In re NAD, Inc.
p. 214 Prob. 7A
Servo Company of Application of
Sun Oil Co., p. 219 In re Notes, p.
229-232 |
|
9/23, W |
pp.
233–278 Prob. 7B |
3. Statutory
Subject Matter In re
Advertising & Marketing Development, Inc. p. 233 Midwest Plastic Fabricators,
Inc. v. Underwriters Laboratories, Inc., p. 237 Qualitex v. Jacobson Products, p. 246 Notes, pp.
254-257 Administrative
Procedures, Incontestability, Supplemental Register pp. 257-265 D. Rights and
Remedies 1. Rights a. Geographic
Boundaries United Drug v. Rectanus, p. 265 Dawn Donut v.
Hart’s Food Stores, p. 266 Notes, p.
273-277 Prob. 7B
Servo Co. of |
|
9/24, Th |
pp. 278 –
297 |
b. Product
and Service Boundaries Mead Data
Central v. Notes, p.
284-287 Moseley v. V
Secret Catalogue, Inc., p. 287 Notes, p.
295-297 |
|
9/30, W |
pp. 297 - 345
|
2.
Limitations on Rights KP Permanent
Make-Up v. Lasting Impression I, p. 297 New Kids on the
Block v. News America Publishing, Inc., p. 302 Notes, p.
308-313 Mattel v. MCA
Records, p. 313 Note: Domain
Names, p. 322-326 3. Remedies (omitted)4. Secondary Liability Hard Rock Café
Licensing v. Concession Services, p. 337 Note, p. 343-345 |
|
10/1, Th |
pp. 345 –
395 Prob. 8 |
E.
Infringement Pickle-Rite v. McGregor-Doniger v. Drizzle, p. 351 Indianapolis
Colts, Inc. v. Metropolitan Baltimore Football Club Ltd., p. 360 Notes, p.
364-367 E. Federal
Unfair Competition Law: Lanham Act Sec. 43(a) Two Pesos v.
Taco Cabana, p. 367 Wal-Mart Stores
v. Samara Brothers, p. 377 TrafFix Devices v. Marketing Displays, p. 383 Notes, pp.
389-395 Prob. 8 Gasco |
|
10/2-10/5 |
|
Take
home Mid-term exam: Pick-up 10/2; Return 10/5 |
|
10/7, W |
pp. 396 –
428 |
II. Patent
Law A.
Requirements For Protection 1. Statutory
Subject Matter Diamond v. Chakrabarty, p. 400 Notes, 406-408 State Street
Bank & Trust Co. v. Signature Financial Group, Inc., p. 408 Ex Parte Lundgren, p. 415 Notes, pp. 418-423 2. Statutory
Standards a. Section
102: Novelty and the Statutory Bars Application of Borst, p. 423 Notes, 426-428 |
|
10/8, Th |
pp. 428 –
493 |
Pfaff v. Wells
Electronics, p. 428 TP Laboratories
v. Professional Positioners, p. 434 Notes, pp.
442-448 b. Section 102(g): Priority Paulik v. Rizkalla,
p. 448 Notes, pp.
451-454 c. Section
103: Nonobviousness Graham v. John
Deere, p. 455 Stratoflex v. Aeroquip, p. 463 Notes, pp.
473-479 KSR Int’l v. Teleflex, p. 479 Notes, pp.
492-493 |
|
10/14, W |
pp. 493 –
511 pp. 511-534
(skim) pp. 534-535 Prob. 9A |
d. Sections
102 and 103 in Concert: What is Prior Art? Hazeltine Research v. Brenner, p. 493 Application of
Foster, p. 496 Notes, pp.
499-501 e.
Utility Brenner v. Manson, p. 502 Notes, pp. 508-511 f. Inventorship pp. 511-513 (skim) g. Enabling
Disclosure W.L. Gore &
Assoc. v. Garlock, Inc., p. 514-518 (skim) Prob. 9A John Elroy Administrative Procedures pp. 519-534 (skim) Note: Fraud and Inequitable Conduct in the Patent and Trademark
Office pp. 534-535 |
|
10/15, Th |
pp. 535 –
558 pp. 576 - 610 |
C. Rights and
Remedies 1. Rights Paper Converting
Machine v. Magna-Graphics, p. 536 Wilbur-Ellis v. Kuther, p. 545 Notes, pp. 546-558 D. Infringement Eibel Process v. Minn. & Ont. Paper, p.
577 Graver Tank v. Linde Air Products, p. 578 Warner-Jenkinson v. Hilton Davis Chemical, p. 584 Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., Ltd. p. 595 Notes, pp.
604-610 |
|
10/21, W |
Prob. 9B Prob. 10 |
Prob. 9B John
Elroy Prob. 10
Ardmore Corp. |
|
10/22, Th |
pp. 610 - 647 |
E. Preemption 1.Unfair Competition and Trademark Law Sears, Roebuck
v. Stiffel, p. 610 Compco v. Day-Brite Lighting, p. 613 Notes, pp.
616-618 2. Trade Secret Law Kewanee Oil v. Bicron, p. 618 Notes, pp.
630-631 3. Undeveloped Ideas Aronson v. Quick
Point Pencil, p. 632 4. Industrial Design Bonito Boats v.
Thunder Craft Boats, p. 638 |
|
10/28, W |
pp. 648-679 |
III.
Copyright Law A.
Requirements for Protection 1.
Formalities a. Notice and Publication 2. Statutory
Subject Matter Baker v. Notes, pp.
672-674 3. Original
Expression a. The Originality Standard Sheldon v.
Metro-Goldwyn Pictures, p. 674 Bleistein v. Donaldson Lithographing, p. 675 |
|
10/29, Th |
pp. 679 –
703 |
Feist Publications v. Rural Telephone Service,
p. 679 Notes, pp. 688-693 B. Ownership
1. Works For Hire and Joint Works Community for
Creative Non-Violence v. Reid, p. 695 |
|
11/4, W |
pp. 704 - 732 |
Erickson v.
Trinity Theatre, Inc., p. 704 Notes, pp.
711-713 2. Transfers
of Ownership New York
Times Co., Inc. v. Tasini, p. 714 3. Term pp. 725-729 4. Termination of Transfers pp. 729-732 |
|
11/5, Th |
pp. 732 - 754 |
C. Rights and
Remedies 1. Rights a. The
Statutory Rights and Limitations Mirage Editions
v. Lee v. A.R.T.
Co., p. 741 Notes, pp.
745-746Columbia Pictures Industries v. Redd
Horne, p. 747 Notes, pp.
751-754 |
|
11/11, W |
pp. 754 - 792 |
b. Fair Use Harper &
Row, Publishers v. Nation Enterprises, p. 754 Notes, pp.
777-784 c. Secondary Liability Fonovisa v. Cherry Auction, p. 784 |
|
11/12, Th |
pp. 792-824 |
d. Exclusive
Rights and New Technologies Sony Corp. of Notes, pp.
805-810Metro-Goldwyn-Mayer Studios v. Grokster, p.
810 Notes, pp.
823-824 2. Remedies (omit) |
|
11/18, W |
pp. 843 - 869 |
D. Infringement Arnstein v. Porter, p. 843 Nichols v.
Universal Pictures Corp., p. 846 Selle v. Gibb, p. 851 Steinberg v. Note, p. 869 |
|
11/19, Th |
pp. 870 - 891 |
E. Rights
Beyond Copyright: Moral Right Gilliam v.
American Broadcasting Companies, Inc., p. 871 Notes, pp.
888-891 |
|
11/25-11/27 |
No class |
Thanksgiving |
|
12/2, W |
pp. 891 –
902 Problems 11a, b |
F. Preemption
of State Law, Section 301 pp. 891-902 Problems
11a,b Giles Naylor |
|
12/3, Th |
Problem 12 |
Problem 12
Cooking for Runners |