On Thursday, September 13, Chicago-Kent hosted the 2012 Supreme Court Intellectual Property Review (SCIPR), a conference highlighting intellectual property cases from the U.S. Supreme Court’s 2011 Term and previewing significant IP cases in the upcoming 2012 Term. Two Chicago-Kent faculty members, Lori Andrews and Carolyn Shapiro, participated in panels at the conference. Visit the conference’s home page for the conference schedule, panelist biographies, and audio transcripts of the featured Supreme Court cases. See the prior posts "SCIPR Highlights, Part 2" and "SCIPR Highlights, Part 1" for more on the conference.
The following summary outlines the colloquy on New Initiatives of the Copyright Office.
The Honorable Maria Pallante, the 12th Register of Copyrights and Director of the US Copyright Office, took part in a colloquy titled “New Initiatives of the Copyright Office.” Pallante highlighted several of the Copyright Office’s current projects and objectives, many of which can be read in her article, “Priorities and Special Projects of the United States Copyright Office: October 2011-October 2013,” which can be read online at www.copyright.gov. The colloquy was moderated by Bart Lazar, a partner at Seyfarth Shaw LLP and Chicago-Kent alumnus.
On Thursday, September 13, Chicago-Kent hosted the 2012 Supreme Court Intellectual Property Review (SCIPR), a conference highlighting intellectual property cases from the U.S. Supreme Court’s 2011 Term and previewing significant IP cases in the upcoming 2012 Term. Two Chicago-Kent faculty members, Lori Andrews and Carolyn Shapiro, participated in panels at the conference. Visit the conference’s home page for the conference schedule, panelist biographies, and audio transcripts of the featured Supreme Court cases. See the posts "SCIPR Highlights, Part 1" and "SCIPR Highlights, Part 3" for more on the conference.
The following summary outlines the panel on the Preview of the 2012 Supreme Court Term.
Professor Carolyn Shapiro, Director of the Institute on the Supreme Court of the United States at Chicago-Kent, moderated a panel featuring Thomas Goldstein, James Dabney, Matthew McGill, and Aaron Panner that discussed the granted and to-watch IP cert. petitions in the upcoming Supreme Court Term, which starts October 1st. The panel focused on two cases: Already, LLC v. Nike and Kirtsaeng v. John Wiley & Sons, Inc. The questions presented in each case are as follows (from SCOTUSblog):
Already v. Nike: Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.
Kirtsaeng v. John Wiley: How do § 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and § 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?
Dabney, counsel to Already LLC, noted that the larger question in the Already v. Nike case is whether or not one party can moot out another party’s claim. McGill, counsel to John Wiley & Sons, explained the conflict in the Kirtsaeng case over the ambiguity of the “first-sale doctrine” (set forth in § 109) and its interpretation—the first-sale doctrine does not explicitly address issues of foreign-made products. The Court will thus debate whether or not Kirtsaeng is liable for copyright infringement based on its interpretation of the first-sale doctrine's relationship to imported foreign-made products.
petitions to watch:
Bowman v. Monsanto Co.
Byrne v. Wood, Herron & Evans, LLP
GlaxoSmithKline v. Classen Immunotherapies, Inc.
Libertarian Party of Washington State v. Washington State Grange
Washington State Democratic Central Committee v. Washington State Grange
Merck & Co., Inc. v. Louisiana Wholesale Drug Co., Inc.
Retractable Technologies, Inc. v. Becton, Dickinson and Co.
R.J. Reynolds Tobacco Co. v. Star Scientific, Inc.
Sigmapharm, Inc. v. Mutual Pharmaceutical Co., Inc.
For more on the Supreme Court's 2012 Term, which begins Monday, October 1st, visit SCOTUSblog.
On Thursday, September 13, Chicago-Kent hosted the 2012 Supreme Court Intellectual Property Review (SCIPR), a conference highlighting intellectual property cases from the U.S. Supreme Court’s 2011 Term and previewing significant IP cases in the upcoming 2012 Term. Two Chicago-Kent faculty members, Lori Andrews and Carolyn Shapiro, participated in panels at the conference. Visit the conference’s home page for the conference schedule, panelist biographies, and audio transcripts of the featured Supreme Court cases. See the posts "SCIPR Highlights, Part 2" and "SCIPR Highlights, Part 3" for more on the conference.
The following summary, prepared with the assistance of Lori Andrews, outlines the panel on Mayo Collaborative Services v. Prometheus Laboraties, Inc.
Lori Andrews joined panelists Arti Rai, the Honorable Paul S. Grewal, Jon Singer, and moderator Nabeela Rasheed in a panel analyzing the implications of the Sumpreme Court’s decision in Mayo v. Prometheus Laboratories.
The Court held that claims in two of Prometheus Laboratories’ patents, which covered a way of determining the optimal dosage for a certain drug, were invalid because they claimed a law of nature, rather than an invention. Prometheus’ patented approach consisted of instructing physicians to administer the drug to a patient, determine the patient’s bodily response to the drug (the resulting metabolite level), and recognize that a metabolite level outside a given range would be ineffective in treatment. The Court found that Prometheus’ patent claims were actually claims on a “law of nature”—the relationship between the concentration of metabolites in a patient’s blood and the drug’s effectiveness. In support of its holding, the Court cited over 150 years of Supreme Court precedent that stated “laws of nature” cannot be the subject of a patent.
The panel discussed the many questions raised by the case, including its most pressing: what constitutes a “law of nature,” and how are we equipped to judge one as such? Professor Lori Andrews offered clarification on this abstract point, differentiating between the legitimate patent of a drug—a synthetic human invention—and the illegitimate patent of a reaction to the drug—a law of nature. Andrews explained that merely discovering nature’s handiwork is not sufficient for a patent. Even though the U.S. Constitution protects “discoveries” in the patent clause, that term was used at the time to mean what we consider “inventions” today—something made by man.
In the following reflection, Professor César Rosado Marzán discusses his current paper on Chilean judges and recent debates about law school. For more of Professor Rosado Marzán's schoalrship, visit his SSRN and Bepress pages.
Some say that globalization and workers' rights are incompatible. If this is so, then I have to grapple with a fact that I have found in my scholarly research: Chile’s labor judges are today more responsive to workers claims than ever before. Yes, Chile, land of Milton Friedman’s Chicago Boys, has a new crop of young, dynamic labor judges that take their protective role of workers extremely seriously. How come?
Globalization has spurred at least two strands of parallel ideologies. The first is market fundamentalism – free markets will make us all freer and richer and hence better off. We know this one.
The second one has been a commitment towards individual rights and liberties, including human rights. Wisconsin law professor Alexandra Huneeus has described how the newer crop of Chilean judges damned the culprits of human rights abuses of the Pinochet dictatorship with particular vehemence to cleanse the judiciary of its own past collaboration with the dictatorship.
In my fieldwork, I observed similar behaviors among labor judges. These judges make clear to lawbreaking employers the penalties that they will incur if found liable in court, pushing employers to settle workers claims in court so that workers can leave the courtroom feeling that justice was served.
The sociological reality of Chile’s pioneering judges is fascinating: Having studied in law schools still fettered by old habits, they learned human rights law in study circles that met in private homes and cafés. They devoured law review articles, many times published in other countries, books and anything that they could get their hands on to expand their legal knowledge.
The labor judges, having also received less than subpar training in labor law, the antithesis of Pinochet’s Chile, also set up their own courses by inviting younger law professors, sometimes trained internationally, to give classes to them. These classes normally start after the judges have had full, grueling days of hearings and writing opinions. These judges take their new roles very seriously. There is scarcely a minute to waste.
So does globalization threaten workers' rights? To the extent governments pass laws to relax regulations and unfetter markets, yes. But to the extent workers challenge such policies and take claims to progressive judges, then not quite. Globalization is a contentious, dynamic process with many contradictions.
This brings me back to law school in the United States. For some years there have been discussions about a crisis in legal education. That law school is too expensive. That students have too much debt. That students can’t find jobs. Is there a crisis? Sure there is. Does this mean law schools are about to close down or that we must turn into some sort of trade school, kill research and tenured professorships? No.
First, the crisis is a general economic crisis rooted in the logic of capitalism and the failure of deregulation; it is not just a law school crisis. Compare our crisis with that of banks, factories, hospitals, and state and local governments and we are all but alone in facing challenges. These challenges call for new ways to deal with complex social problems to help carry the United States forward. What better place but law schools, law reviews and research to generate these ideas? Who better but new crops of lawyers to become the standard bearers of these ideas out there in the real world?
Sure, our students need jobs to be able to do all these great things. True. But we must note that many students do not go to law school with the expectation that a job will be happily waiting for them upon graduation. Paying work is out there but it will take effort to find it. It is not always advertised as an “associate lawyer” position in a downtown law firm. The high paying, easy-to-get-job phenomenon happened to a segment of elite students during our time of “irrational exuberance,” but those days are over for good. Prospective students who have such an impression about law school and the profession are probably not best suited for this enterprise. As the Chilean judges show us, law is a vocation that requires significant sacrifice, nerves of steel, personal investment and entrepreneurship, perhaps unlike other demanding professions. Nothing comes easy in the law.
Yes, we should do all we can to facilitate job matching for our students. We must also find ways to lower the cost of education not just of law school, but also of all formal education in the United States. It is one of our pressing 21st century challenges.
We can start by sticking to idea that education, including law school, is more than just an “industry.” (Education is an internationally recognized human right, by the way). We produce more than lawyers for a market.
We advocate for justice and we impassion and train those who will exercise it. Particularly as the going gets tough, we can’t drop this important role handed to us. To the extent that we continue with our mission to justly tackle the problems of the day, law schools will remain a place that many look up to. Calls to turn the professariat into a precarious occupation, kill research (and, hence, the generation of new ideas) and, in essence, suck the spirit out of law schools, are deeply wrong-headed. We would be putting our own heads on the chopping block.
If we drop the ball, our prospective students will find other ways to train themselves. They may even find a living room or a café and a group of like-minded individuals to learn from. The thirst for justice is never-ending in this modern and not always fair, globalized world that we live in. We can either fill that void for justice and contribute to our country’s future, or adhere to market fundamentalisms, becoming a pivotal part of the very problem that assails us.
At a recent "faculty research slam" event, faculty members shared excerpts and ideas from current works-in-progress and recent projects. The following summary by Professor Henry Perritt discusses recent scholarship interests and upcoming articles, most of which concern Internet-centered technology developments and their implications for the marketplace, the entertainment industry, and intellectual property law. To read more of Professor Perritt's scholarship, visit his SSRN and Bepress pages.
Ronald Coase’s 1937 article, “The Nature of the Firm,” observed that rational economic actors decide whether to “make or buy” depending on whether the transaction costs of assembling factors of production inside a firm’s boundaries are less than the transaction costs of assembling them in the external marketplace. Michael Heller’s 1998 Harvard Law Review article, “The Tragedy of the Anticommons,” observed that fragmented ownership of goods and services increases transaction costs for those who want to combine.
In a series of law review articles—Henry H. Perritt, Jr., New Business Models For Music, 18 Vill. Sports & Ent. L.J. 63 (2011); Henry H. Perritt, Jr., Technologies of Storytelling: New Models for Movies, 10 Va. Sports & Ent. L.J. 106 (2010); Henry H. Perritt, Jr., Cut in Tiny Pieces: Ensuring that Fragmented Ownership Does Not Chill Creativity, 14 Vand. J. Ent. & Tech. L. 1 (2011); The Internet at 20: Evolution of a Constitution for Cyberspace, 20 Wm. & Mary Bill Rts. J. 1115 (2012); Henry H. Perritt, Jr., Competitive Entertainment: Implications of the NFL Lockout Litigation for Sports, Theatre, Music, and Video Entertainment, ___ Hastings Comm. Ent. L. J. ___ (in press); and Henry H. Perritt, Jr., Crowd Sourcing Indie Movies (forthcoming)—I argue that Internet-centered technology developments are reducing the size of economically sustainable units of production in the entertainment industries, broadly defined, thereby reducing barriers to entry and allowing almost anyone with a creative bent to access global markets. The result, however, is greatly increased transaction costs, both for consumers who want to find entertainment that appeals to them, but also for other creators who want to combine what’s available into new creative works.
The most interesting technological developments are the ones that reduce transaction costs in this fragmented marketplace. iTunes and Amazon come to mind as early innovators. An extension of crowd-sourcing techniques popular so far mainly for raising donations for creative projects into all phases of creation is promising.
The law has a relatively modest role to play in this new marketplace, except to allow for enforcement of contracts. Intellectual property law, especially copyright is becoming irrelevant because technology is reducing marginal costs and making markets more competitive. In such markets, prices approximate marginal costs. As prices fall, there is no room for margins for pirates and thus diminishing economic incentives to engage in piracy.
The next frontier for the law is dealing with the growing threats of cyberwar and cyberterrorism. The best solution is not to try to roll back the essential features of the Internet: decentralization and autonomy for participants at the “edge” with new regulations and enforcement agencies. The best solution is to borrow a page-long part of the common-law of torts: to subject service providers to liability for negligence when they do not use best practices to protect their customers’ assets. In order to revitalize negligence law to play this role, some modification will be necessary in the doctrine disallowing recovery for mere economic injury. This is the subject of a forthcoming article, Cyberwar.
At a recent "faculty research slam" event, faculty members shared excerpts and ideas from current works-in-progress and recent projects. The following abstract is from an in-progress article by Dean Harold Krent on the implications of the retroactive application of reduced punishments for crack cocaine offenders, a subject addressed in the Supreme Court's recent decision in Dorsey v. United States. The title of the work-in-progress is "Retroactivity, Presumptions, and Crack Sentencing Reform." To read more of Dean Krent's scholarship, visit his SSRN and Bepress pages.
This essay argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for computer hacking, and in no way should signal to Congress that future changes should apply prospectively only.
Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court inordinately relied on the general savings statute enacted in 1871. Congress enacted that statute not to prevent retroactive decriminalization or diminution in punishment, but to avoid the consequence of abatement of pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to avoid the bizarre consequence of offenders walking free merely because Congress recodified a law or even increased the punishment for an offense without specifying that prosecutions could continue under the former enactment. In today’s world, the savings statute should be understood more as a default in the face of congressional silence – once it is clear that Congress considered the temporal scope of its action, the presumption disappears.
The essay then considers whether alternative justifications support a strong presumption for prospective application of any legislative change. I initially turn to the well entrenched norm against retroactive lawmaking. I reject the premise that the conventional reasons against retroactive measures have salience in the context of legislative amelioration of punishment. I then assess two separation of powers concerns that might justify a clear statement rule against retroactive application of congressional leniency. First, I ask whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency.
On the other hand, I reject the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders at times seems grossly unfair, and Congress from a deterrence perspective lacks any justifiable reason to treat similarly situated offenders so disparately. Nonetheless, the essay argues that Congress under a retribution rationale can justify the differential punishment scheme and survive equal protection scrutiny.
In short, because there are no compelling policy- or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses prior to the decriminalization or diminution in punishment. The Court’s decision in Dorsey should have been straightforward – given the directive in the sentencing act to rectify the disparity in sentencing between crack and powdered cocaine offenses as quickly as possible, Congress intended the shortened sentences to apply to all pending cases.
Professor Adrian Walters' new blog, The Walters Way, is now up and running. Check in regularly for posts on "real law for real life." In his most recent post, Professor Walters recommends some invaluable web resources for law students and young professionals.
You can also follow Professor Walters on Twitter @walters_adrian.
Professor Sheldon Nahmod recently blogged about two circuit court decisions within the last year that have applied Ashcroft v. Iqbal (2009), a case articulating a plausability standard for pleading in federal courts. The post is Nahmod's second on the same subject.
The two posts can be read at Professor Nahmod's blog, Nahmod Law.