Week 7: The Future of Intellectual Property Law
“Trends in IP Law”
- Week 7: The Future of Intellectual Property Law > Trends in IP Law > Doctrinal Upheaval: Patents
- Week 7: The Future of Intellectual Property Law > Trends in IP Law > Doctrinal Upheaval: Trademark
- Week 7: The Future of Intellectual Property Law > Trends in IP Law > Long-term Macro Trends
Week 7: The Future of Intellectual Property Law > Trends in IP Law > Doctrinal Upheaval: Patents
- In all of the areas of intellectual property law we’ve covered, there are areas of the law that are simply confused, confusing, undergoing transformations as we speak, and so forth.
- The Alice case from last summer in intellectual property law or in patent law from the Supreme Court.
- Whether or not all of these patents that are out there, that were applied for under a prior understanding of what the law was, whether all of those are invalid now.
- Claim construction is one of the most difficult areas in all of intellectual property law and certainly in the patent law.
- Until we understand and get a handle on what it is, the rules are for interpreting patent claims, we’re really not going to know much about the way that the law works.
- Because the uncertainty, the upheaval in that area, permeates throughout the rest of the patent system.
- What’s going on with the Doctrine of Equivalents? Is it dead? Is it not dead? Will it be resurrected at some point? As you saw during the session on patents, the Doctrine of Equivalence has been slowly whittled away by a series of court decisions over the last 15 years or so.
- So that raises the question in the law which is, what’s the deal? Is it really a valid doctrine that patent holders can rely on in order to get protection for their inventions? Or is it indeed a dead letter and something that we’re really not going to see again? Sort of a throwback back to the ’70s and ’80s, we don’t know.
- In the patent context there are some policy debates as well.
- Patent trolls, I’m sure many of you have heard about patent trolls.
- Which is going to change the trajectory of what kind of patents get applied for.
- So if you are in the software industry, for example, what you understand about patentability is probably going to change the way that you think about whether you should seek patents or not seek patents for your inventions.
- Because the patent system has a very unique institutional structure, where we have an administrative agency, the US Patent and Trademark Office, that doesn’t have a lot of administrative power.
- Doesn’t have rule making authority, which would allow it to make its own rules about the patent law.
- Instead it’s really at the mercy of the courts in terms of what the legal standards are for how patents get evaluated and granted.
- In the court system, the patent law has a unique institutional structure through the Federal Circuit, which of course is the single appellate court for all patent issues.
- At the patent context you go to a particular, specialized, appellate court, the Federal Circuit.
- Which has the mandate of trying to manage the patent law.
- Is the Federal Circuit doing a good job at managing the patent system? And is this institutional structure something that we should continue?
Week 7: The Future of Intellectual Property Law > Trends in IP Law > Doctrinal Upheaval: Trademark
- So let’s talk briefly about trademark. So what’s the scope of Fair Use in trademark? As you saw in the section on trademark, there are number of disparate doctrines that sort of combine to make what we call a”Fair Use” exception.
- So an ongoing doctrinal question in trademark law is what is the scope of Fair Use? And then at the same time the borders of trademark protection are always being pressed.
- There’s always a lot of doctrinal upheaval with respect to trademarks in terms of what you can cover and what you can’t cover.
- So intellectual property owners want the protection provided by trademarks and so they’re pushing the limits, to some extent, on what can be protected under trademark.
- Where instead of focusing squarely on whether the use of a mark would cause confusion in the marketplace, we’re simply asking has the mark been harmed? Now that’s a really clear understanding of a trademark as a property right in and of itself, rather than a property right that’s just a means to an end.
- So traditionally we used to think of trademarks as being really only source identifiers and not having value in and of themselves.
- Then trademark to the internet economy, as we left off and then in the trademark area, are incredibly important.
Week 7: The Future of Intellectual Property Law > Trends in IP Law > Long-term Macro Trends
- And if you step back and think about what’s going on in intellectual property law, one of the most interesting trends is that IP is increasingly emerging as a real topic of public discussion.
- You’re seeing editorials in major mainstream newspapers talking about recent Supreme Court cases on intellectual property law.
- You see radio stories that are designed and made specific to patent law or to other areas of intellectual property.
- They have to know what the basic debates and trends are, and I think that’s really changed the way that we think about intellectual property law.
- It really is the mainstream And because of that, we’re talking about it more, and I think we’re talking about it differently.
- For better or worse, IP is now on the public radar screen, and it’s going to be there, I think, for some period of time.
- They have become very active in and re-calibrating or reconfiguring the aspects of intellectual property law- many of them that we talked about in this course.
- Supreme Court justices read the newspapers like the rest of us do, and they see that Intellectual property law matters and that people talk about it.
- I think there’s a recognition now that the cases really matter in terms of long-term trends for innovation in the United States And so the Supreme Court feels like it should weigh in.
- Because of that, intellectual property law is right at the center of the direction that the economy is moving and has been moving for some time.
- So that means intellectual property’s becoming more and more important.
- More businesses find intellectual property to be relevant to their business, and indeed, more businesses every day find it to be central to their business.
- Small start-ups know that they can’t get funded without having intellectual property rights, and it just filters out from there.
- The way that you enforce rights- your right as the inventor of new products- through contract manufacturers is, of course, by contract but also using intellectual property rights as your primary mechanism for preventing theft and copying of whatever it is you’ve created.
- As we’ve talked about throughout this course the fact that goods and services are now distributed digitally means that you’re going to have a lot more impact of intellectual property, especially copyright but also trademark.
- To some extent, patent is going to matter more and more as people increasingly communicate, interact, consume goods and services through digital networks.
- There’s a lot of new ways that people are dreaming up to take advantage of new technologies, new thinking, new ideas, and make money, sell new things, create a better world for all of us.
- These new business models- how do they work with intellectual property? Are they protectable? Are they not protectable? What goods are you creating? How do they respect earlier intellectual property rights? How do they interact? All of these things are happening as part of this long-term trend, which is centering intellectual property law right at the core of the new economy and I think makes it a really interesting and, frankly, very exciting time to learn more about intellectual property.