IPSC and the Future of Legal Scholarship

Last week I attended the 14th edition of the “Intellectual Property Scholars Conference,” or IPSC. I came back to Pittsburgh inspired, challenged, and a little … well, down. Did I see into the scholarly soul of the discipline(s) that we call intellectual property law? Into the future of legal scholarship in general? If so, I came away with mixed feelings. I’ve been away from this blog; now back to the blog I go.

To set the stage a bit, consider this. IPSC is a working papers conference. It was launched in 2001 by senior faculty at Cardozo, DePaul, and Berkeley (then Boalt Hall) law schools as a way for a small number of seniors to give thoughtful feedback to an equally small number of emerging juniors. That feedback constituted partly comments on papers; it also constituted broader mentorship built into the structure of the conference and the relationships that emerged from it.

IPSC changes. Each year, the conference host tweaks the format a bit. The conference rotation has expanded to include Stanford as well as the original three host schools. But the biggest change is that the conference has steadily expanded in size. The original two conferences were really workshops; all attendees fit into a single (large) conference room. The 2014 edition featured more than 200 attendees and more than 150 paper presentations. There were talks by senior scholars as well as by grad students, postdocs, and junior faculty members, and at times there were as many as six concurrent tracks. Rebecca Tushnet provided a nearly real-time account of many of the papers that she heard, but even her record of events, amazing as it is, portrays only a small portion of the IPSC landscape. I probably heard 20 papers, read abstracts for all 150+ and downloaded a fair number of them for later consumption, and interacted socially with several dozen people. Everyone and everything else was essentially invisible to me. On the printed program, I saw the names of many friends and colleagues who I never saw in the flesh.

What do we make of this?

First, the good news:

1/ Legal scholarship is going global in a big way.

For the first time in my memory, a not insignificant number of presenters at IPSC were scholars from outside the US, including Asia (China in particular) and South America as well as Canada and Europe. (Several of the presenters based at European and UK universities are natives of South American and Asian countries.) Much of the research on offer from our non-US colleagues was/is of a type and style – conceptual and/or empirical — that only a few years ago we might have stereotyped as “American” in contrast with a stereotypically duller, less ambitious European doctrinalism.

Question: Is there any conceivable sense in which this is a bad thing?

Next, the bad news:

2/ Plus ça change.

Several years ago I came back from an earlier edition of IPSC discouraged by what I felt was a lack of historical sensitivity among my IP colleagues, particularly (but not entirely) the junior ones. I wrote about that on the blog, here, and later tried to address the problem in part with a series of posts that I titled “Lost Classics of IP.” I’ve now combined and reshaped those posts into a paper that I posted to SSRN recently.

My views have not changed.

Question: Is there anything meaningful that can be done about this?

Finally, the so-so news:

3/ The purpose(s) of working papers conferences.

IP scholars joke that IPSC has become a cocktail party, or a form of intellectual speed dating (or both; choose your own metaphor). And they’re right about the metaphors, though the metaphors do more than punch up a a joke. In truth, the conference is modestly useful at introducing junior scholars to some senior scholars and to the norms of IP scholarship. It is very useful at enabling mid-level and senior scholars to meet and hang out with their friends. It is not useful at all with respect to its original purpose, which is feedback and mentorship. Mentorship is a high-bandwidth activity, which means that it doesn’t scale, least of all across six concurrent tracks and 20 minutes per presentation (including Q&A).

For years, IP cultivated a reputation as the welcoming discipline. The field suffered from little of the hierarchy and sense of exclusion that (I hear from friends) defines other fields. Junior people were (on the whole) welcomed, supported, mentored, and encouraged. They became (on the whole) welcoming, supportive, mentoring, encouraging senior people. And the scholarship that came out of the field was, in my view and on the whole, as ambitious, thoughtful, and challenging as the scholarship in any legal domain.

I look at the junior people in the field today, and I wonder: At 20 minutes a presentation, how welcoming and supportive can the field really be? Sure, virtually everyone who asks gets a presentation slot, which guarantees access to junior scholars. But that also means that effectively anyone who asks gets a presentation slot. If mentoring is happening, where and when is it happening? (In small, more private and less-IP-specific settings, if it’s happening at all.) How will today’s junior scholars behave when (if) they become senior scholars? And what kind of scholarship is this dynamic producing? On that last question, my tentative answer is this: IP is supporting a lot of “normal science” research that is asking, or re-asking, versions of questions that have been asked before.

Remember, this is the FIRST TIME that anyone has asked these important questions, although they are virtually indistinguishable from questions that people senior to me, who signal what’s important in the field and what’s safe to argue, have asked many times before.

Question: Is IP eating its seed corn? Put differently: Is IP, which is relatively young by scholarly standards, maturing into a typical academic discipline, with hierarchies and implicit norms and “right” and “wrong” sorts of scholarship?

4/ What about our students?

Last but by no means least, I came away as never before from IPSC wondering whether any of the scholarship on display has any bearing on how we teach our students. Lots of presentations had explicit or implicit “hooks” with respect to public policy and advocacy; on the whole, that’s a good thing. But very few presentations suggested to me, even implicitly, that the scholarship at hand either emerged from the challenges of teaching law students today or would affect how we teach law students today. This may be what troubled me most about my experience last week: the sense that I was wearing a “scholar’s hat” that was detached from my “ordinary” (but changing) role as a law teacher, and more detached than it has been for a long time, considering the “normal science” style of scholarship that I witnessed. The legal profession and law schools are confronting some extraordinary challenges. There was little sense at IPSC that those challenges are affecting scholarly practice.

Questions: Is this distinction, between modes of legal scholarship and modes of law teaching and the practices of the legal profession, sustainable? If it’s not, what synthesis (or more likely, syntheses) of scholarship and teaching are likely to take its place?

Opportunity for Professor at INTA Annual Meeting 2014

The International Trademark Association (INTA) is looking for one professor to be chosen as a Table Topic moderator for the 2014 Annual Meeting to be held in Hong Kong next May.  (For those who aren’t aware, the INTA Annual Meeting is a conference of about 9,500 trademark professionals from more than 140 countries.  It is a good opportunity to stay up to date on the latest issues in trademark law, talk with key stakeholders, connect with colleagues from around the world, and get a lot of CLE credit.)

While INTA represents brand owners and has historically spoken from that perspective, INTA has made concrete and serious efforts over the last several years to broaden its base and include the voices of academics in its programming, particularly during the Annual Meeting.  (Frankly, that is what caused me to join the Academic Committee, to work toward the realization of that inclusive voice.)  The Annual Meeting now features an entire day of academic programming, including a Professor Panel, where academic thought leaders present their perspectives on issues such as trademark boundaries, functionality, and overlapping doctrines, and a Scholarship Symposium, where papers are workshopped by both academics and practitioners.   The Professor Panel has become one of the most popular panels at the Annual Meeting.

INTA has also expressed interest in reaching out to professors who might be interested in leading Table Topic discussions in a particular area.  Table Topics are two-hour discussions limited to ten participants on a wide variety of topics related to trademarks.  Participants at the Annual Meetings register (and pay) in advance for a seat at the table to discuss, and the seats typically fill up quickly, so it can be a good opportunity to generate discussion if professors happen to be working on scholarship ideas that might benefit from input from diverse perspectives, particularly from an international audience.  I have personally found it helpful for my own scholarship—it’s not always easy to find a (captive and) interested audience to discuss an issue for two hours straight.

A sample of topics from the 2013 Annual Meeting can be found here.  If you would like to be considered, please send a short paragraph describing the general topic to me at mcarpenter@law.tamu.edu, by Tuesday, October 15.

The downside:  INTA does not cover travel expenses.

 

Theorizing the Web

Those near NYC this Saturday might consider visiting the “Theorizing the Web” conference. Provocative presentation titles include:

The Automation of Compliance: Techno-Legal Regulation in the U.S. Trucking Industry
What We Talk About When We Talk Data: Metrics, Mobilization, and Materiality in Performing Health Online
Crowdsourcing Assassination 2.0
Identity Prosumption and the Quantified Self Movement
Beyond Bridges, Speed-Bumps, And Hotel Keys: A New Design Paradigm for Control Technologies
There is no difference between the “real” and the “virtual”: a brief phenomenology of digital revolution

I am also really looking forward to seeing Rob Horning and Daniel Kreiss present. Having just enjoyed the WIPIP at Seton Hall organized by my colleague Gaia Bernstein, I can say that there really is an embarrassment of riches in internet thought in the NY area these two weeks.

X-Posted: Concurring Opinions.

Smartphones and Software Patents

I will be speaking at Santa Clara Law School’s outstanding conference about Solutions to the Software Problem tomorrow.  It promises to be a great event, with academics, public interest advocates, and government officials all weighing in.

As a lead-in to the conference, I want to discuss an oft repeated statistic: that there are 250,000 patents that might be infringed by any given smartphone. I’m going to assume that number is accurate, and I have no reason to doubt its veracity. This number, many argue, is a key reason why we must have wholesale reform – no piecemeal action will solve the problem.

Here are my thoughts on the subject:

1. Not all of these patents are in force. Surely, many of them expired due to lack of maintenance fee payments.

2. Not all of the remaining patents are asserted. After all, we don’t see every smartphone manufacturer being sued 250,000 times.

3. Many of these patents are related to each other or are otherwise aggregated together. Thus, there are opportunities for global settlements.

4. Even if you think that 250,000 is huge number of patents (and it is, really – there’s not disputing that), it is unclear to me why anyone is surprised by the number when you consider what’s in a smartphone. More specifically:

  • A general purpose computer and all that comes with it (CPU, RAM, I/O interface, operating system, etc.).
  • Active matrix display
  • Touch screen display
  • Cellular voice technology
  • 1x data networking
  • 3G data networking
  • 4G data networking
  • Wi-Fi data networking
  • Bluetooth data networking
  • GPS technology (and associated navigation)
  • Accelerometer technology
  • Digital camera (including lens and image processing)
  • Audio recording and playback
  • Battery technology
  • Force feedback technology (phone vibration and haptic feedback)
  • Design patents

The areas above are by and large “traditional” patent areas – they aren’t software for the most part. And there are thousands of patents in each category, before we even get to the potential applications of the smartphone that might be patented (and these are of greater debate, of course).

So, yes, there are many, many patents associated with the smartphone, but what else would you expect when you cram all of these features into a single device? Perhaps smartphones are the focus of the software patent problem because, well, they do everything, and so they might infringe everything. I’m not convinced that this should drive a wholesale reform of the system. Maybe it just means that smartphones are underpriced given what they include. Not that I’m complaining.

ICANN Announces New gTLD Program

On June 20, ICANN announced that it would be opening up the domain space for new generic Top Level Domains (gTLDs),  meaning that anyone will be able to register virtually any word or phrase in almost any language or script as a gTLD.  Up until now, there have been 22 available gTLDs (eg .com, .net, .org, .info etc) along with a number of country-code Top Level Domains (ccTLDs) such as .us, .uk, .au, .ca etc.

Applications for new gTLDs will begin early in 2012.  It will be interesting to see how effectively this program is administered particularly in dealing with battles between trademark holders and others.  Additionally, it will be interesting to see if the possibility of so many new gTLDs actually does make any inroads into the prominence of the .com space over time.