FOUNDATIONS OF IP LAW SEMINAR – SPRING 2019


Foundations of Intellectual Property Law is a three-credit seminar for upper-level law students at the University of Pittsburgh School of Law, with enrollment limited to 12 students. Prior coursework in intellectual property law is required, preferably in at least one of the intellectual property law courses offered at Pitt Law. This page is for students enrolled in the Spring 2019 version of the seminar.

Prerequisite
Any course in Copyright, Patent, and/or Trademark Law, including (but not limited to) Intellectual Property, or permission to enroll given by Professor Madison. Students are expected to have learned the fundamentals of legal research, legal analysis, and legal writing.

Course objectives
The official course description (University of Pittsburgh course number LAW 5862) is this:

This seminar deals with the theoretical and policy foundations of patent, copyright, and trademark law. The readings consist of both contemporary and “classic” law review articles and other primary and secondary sources that explore connections between intellectual property law and a variety of possible justifications for the law and its leading cases, statutes, and treaties, including history, liberal political theory, economics and other social sciences, literary theory, and cultural theory.

The bulk of the work of the seminar consists of supervision and discussion of original research by students (that is, research in print collections and other collections of analog sources, and digital archives of print collections) on historical intellectual property topics of their choosing, and the production and classroom presentation of a significant piece of original writing by each student.

A fuller description of the goals of the course is this. In Foundations of IP Law , you will:

  • Participate in some sustained engagement with primary sources that surround key moments of the history and theory of intellectual property law. “Sustained engagement” is the key phrase here. Readings, class discussions, and your own research and writing will focus in great depth on a very small number of leading cases.
  • Master the theory and policy behind the key doctrines of intellectual property law.
  • Research and write. This is a course in advanced research and legal writing. Because much of the focus of the seminar is on older leading cases, much of the research to be conducted will focus on materials that are available only in paper form, or not available on the Internet, or both. It is likely that students will need to acquire and apply legal research skills that would have been familiar to students of a generation ago. Your writing will be subjected to searching critiques.  Students should expect to have their writing scrutinized at the level of the word and the sentence, at the level of the concept and structure of the argument, and at the level of content.

Classroom computer and wireless policy 
For the Spring 2019 version of Foundations of IP Law, students ARE permitted to use laptop computers or equivalent devices (such as netbooks, smartphones, Blackberries, and/or iPhones, iPads, etc.) in the classroom, subject to the following provisos: First, any powered technology should be used appropriately and with respect for fellow seminar participants. If any one student fails to abide by that guideline, technology use may be revoked for the entire group. Second, mobile phones and other mobile telecommunications devices should be switched off. If your device rings in class, then you will be expected to bring brownies to the entire class during the following class session. If you answer your phone in class, or leave the classroom to answer your phone, then the device may be confiscated by me and returned to you by the Associate Dean for Academic Affairs.

Class meeting time and place  
Class will meet on Tuesday from 10:30 a.m. to 12:20 p.m. in Room G46.

Attendance and preparation 
The Law School’s attendance policy does not apply to this course. Students are expected to attend 100 percent of class meetings. Students are expected to arrive for class on time. If a student arrives late, I may exclude that student from the classroom. Students are expected to read assignments in advance of the class meeting for which they are assigned.

Academic integrity 
As in all classes at Pitt Law, students enrolling in this course are expected to comply with the University of Pittsburgh’s Student Code of Conduct, which may be accessed online here.  Students are expected to comply with the University of Pittsburgh’s and the School of Law’s Guidelines on Academic Integrity, which are available at:

Students with disabilities 
It is the policy and practice of the University of Pittsburgh School of Law to comply with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Commonwealth of Pennsylvania requirements regarding students and applicants with disabilities. Under these laws, no qualified individual with a disability shall be denied access to or participation in services, programs, and activities of the University of Pittsburgh School of Law. Students who require accommodations because of a physical, learning or other disability must be evaluated by the Office of Disability Resource Services (ODRS). The ODRS will document and verify the student’s status and make recommendations for appropriate accommodations to the Associate Dean of Students, Kevin Deasy. If you have a disability for which you are or may be requesting an accommodation, you are encouraged to contact Disability Resources and Services, 216 William Pitt Union (412-648-7890/ 412-383-7355 (TTY)) as early as possible in the term. DRS will verify your disability and determine reasonable accommodations for this course.

Contacting Prof. Madison 
Professor Madison’s office hours are on Monday afternoons from 1:30 p.m. to 3:00 p.m. and at other times by appointment. Professor Madison’s office is Room 311. Students should make an appointment via e-mail at madison@pitt.edu.

Reading materials
The primary materials for the seminar are readings from Intellectual Property at the Edge: The Contested Contours of IP (Rochelle Cooper Dreyfuss & Jane C. Ginsburg eds., 2014). Each student should have ACCESS to a copy of that book.

Good access:  Copies can be purchased at amazon.com, among other places. That option is expensive.

Better access:  FREE ACCESS to the book is available via the University of Pittsburgh Library System. Go to library.pitt.edu and search for the title above. A free ebook version is available there.

Best access:  Here is a direct link to the electronic version of the book. Pitt login/password is required if you are not using a Pitt-networked computer.

Certain optional materials are available via a TWEN page for this course, at Westlaw.

Reading assignments and outline of classes

Class One, Tuesday, January 8:

  • Jane C. Ginsburg and Rochelle Cooper Dreyfuss, Editors’ Preface (pp. xvii – xviii)
  • Carol M. Rose, Introduction: A Real Property Lawyer Cautiously Inspects the Edges of Intellectual Property (pp. 1 – 13)
  • Stacey L. Dogan, Haelan Laboratories v. Topps Chewing Gum: Publicity as a legal right (pp. 17 – 38)
  • Haelan Laboratories v. Topps Chewing Gum
  • Read this Syllabus in its entirety.  Come to class prepared to discuss one or more possible paper topics.

Class Two, Tuesday, January 15:

  • Paper topic proposals are due prior to or at the beginning of class, by email.  These should be not more than 250 words or one printed (double-spaced) page in length.
  • Barton Beebe, The suppressed misappropriation origins of trademark antidilution law: The Landgericht Elberfeld’s Odol Opinion and Frank Schechter’s “The Rational Basis of Trademark Protection” (pp. 59 – 80)
  • Read “The Rational Basis of Trademark Protection” on the Foundations of IP Law Seminar page on TWEN

Class Three, Tuesday, January 22:

  • Dev S. Gangjee, Spanish Champagne: An Unfair competition approach to GI protection (pp. 105 – 129)
  • Bollinger v. Costa Brava Wine Co. on the Foundations of IP Law Seminar page on TWEN

Class Four, Tuesday, January 29:

  • Susy Frankel, “Ka Mate Ka Mate” and the protection of traditional knowledge (pp. 193 – 214)
  • Ka Mate! Haka

Class Five, Tuesday, February 5:

  • Outlines of papers are due prior to or at the beginning of class, by email. The outline consists of a section by section and paragraph by paragraph statement of all topic sentences proposed for the paper. In addition, a list of all proposed research sources should be turned in prior to or at the beginning of class.
  • Jeanne C. Fromer, A legal tangle of secrets and disclosures in trade: Tabor v. Hoffman and beyond (pp. 271 – 294)
  • Tabor v. Hoffman

Class Six, Tuesday, February 12:

  • Lionel Bently, Patents and trade secrets in England: the case of Newbery v James (1817) (pp. 295 – 317)
  • Newbery v. James on the Foundations of IP Law Seminar page on TWEN

Class Seven, Tuesday, February 19:

  • Katherine J. Strandburg, Legal but unacceptable: Pallin v. Singer and physician patenting norms (pp. 321 – 342)
  • Pallin v. Singer on the Foundations of IP Law Seminar page on TWEN

Class Eight, Tuesday, February 26:

Tuesday, March 5:

[Tuesday, March 12: No class. Spring Break.]

Class Nine, Tuesday, March 19:   

Class Ten, Tuesday, March 26:

Class Eleven, Tuesday, April 2:

Class Twelve, Tuesday, April 9:

Class Thirteen, Tuesday, April 16: 

  • Student presentations.

Last Day of Final Exams, Tuesday, May 7: The final version of the seminar paper is due, delivered to the Registrar’s Office at the law school not later than 12 noon on this date.  Please *also* send an e-copy of the final paper to Professor Madison, and a copy of your presentation materials (slides), if you use them.

Work expected of students
The grade for the seminar will be based primarily on a single long (30-50 pp.) research paper that is in the mode of the materials that constitute its primary readings: a sustained historical exploration and analysis of a single leading older (pre-1985) case in intellectual property law. Students will prepare four versions of the paper, two in outline form and two in fully elaborated (footnoted) form, and they will also be expected to prepare and deliver an oral presentation to the seminar based on their research.

Because this seminar has been offered in years past, certain cases have been covered by earlier students and are off-limits for purposes of the 2019 version of the seminar.  Those cases are listed at the bottom of this page.

Guidelines for researching and writing the paper, and for making presentations, are here.

A recap of paper deadlines:

  • Tuesday, January 15: Paper proposals due.
  • Tuesday, February 5: Outlines are due.
  • Tuesday, April 2: First drafts are due.
  • Thursday, Tuesday, May 7: Final drafts are due.

With respect to deadlines, follow the dates listed above rather than the schedule listed in the guidelines. No extensions from any of the deadlines will be granted except in the case of rare, dire, and unanticipated emergency, and then only with the approval of the Associate Dean for Academic Affairs or the Vice Dean.

Grading guidelines
The paper topic proposal is graded on a pass/fail basis. The outline counts for 25% of the final grade. The full draft counts for 45% of the final grade. The final version of the paper counts for 30% of the final grade. The final grade may be adjusted upward or downward based on the depth of the student’s efforts to revise the full draft of the paper in light of Professor Madison’s comments. Seminar grades may also be adjusted upward or downward based on the quality of the student’s classroom performance and paper presentation. As is customary for courses that are graded on the basis of students’ out of class work product rather than on the basis of final exams, papers will not be graded anonymously. Students should include their own names on the first page of all written work product used to satisfy the requirements of the seminar. Papers written for this seminar may be used to satisfy the upper level writing requirement.

Suggested cases for papers  
Students are encouraged to develop their own proposals regarding cases to research. Leading cases included in intellectual property casebooks may be useful places to start. The following is a non-exclusive list of case suggestions:

Copyright

  • Peter Pan Fabrics, Inc. v. Martin Weiner Corp.
  • Roth Greeting Cards v. United Card Co.
  • Sid & Marty Krofft Television Productions Inc. v. McDonald’s Corp.

Patent

  • Bloomer v. McQuewan
  • Pennock v. Dialogue
  • The Button Fastener Case

Trademark

  • Abercrombie & Fitch v. Hunting World
  • Zatarain’s v. Oak Grove Smokehouse
  • Borden’s Ice Cream Co. v. Borden’s Condensed Milk Co.
  • Seabrook Foods, Inc. v. Bar-Well Foods, Ltd.

Cases that are off-limits   
Students in the Spring 2018 version of the seminar may not select any of the following cases for their papers, because students in earlier versions of the seminar have already written about them:

Papers written in 2018:

  • Columbia Broadcasting System, Inc. v. Loew’s, Inc.
  • Hoehling v. Universal City Studios, Inc.
  • Motion Picture Patents Co. v. Universal Film Mfg. Co.
  • Dispute concerning The First Half of My Life

Papers written in 2017:

  • Boston Professional Hockey Ass’n v. Dallas Cap & Emblem Mfg., Inc.
  • Boyden Power-Brake v. Westinghouse Air-Brake
  • Kamar International, Inc. v. Russ Berrie & Co.
  • Motschenbacher v. R.J Reynolds Tobacco Co.
  • Warner Brothers, Inc. v. American Broadcasting Companies, Inc.

Papers written in 2016:

  • United States v. Univis Lens Co., Inc.
  • Peabody v. Norfolk

Papers written in 2015:

  • Ali v. Playgirl, Inc.
  • Atari v. North American Philips Consumer Electronics
  • Basevi v. Edward O’Toole Co.
  • In re Selden
  • Jollie v. Jacques
  • Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.
  • Winans v. Denmead

Papers written in 2013:

  • National Comics Publications, Inc. v. Fawcett Publications, Inc.
  • Nike, Inc. v. Rubber Manufacturer’s Association, Inc.
  • Ideal Toys v. Kenner
  • Sears, Roebuck & Co. v. Stiffel Co. and Compco Corp. v. Day-Brite Lighting Inc.
  • Sheldon v. Metro-Goldwyn Pictures Corporation
  • Stewart v. Abend
  • United States v. Adams

Papers written in 2012:

  • Funk Brothers v. Kalo Inoculant
  • Hotchkiss v. Greenwood
  • Mazer v. Stein
  • O’Reilly v. Morse
  • RCA Mfg. Co. v. Whiteman
  • Twentieth Century Music Corp. v. Aiken
  • Walt Disney Productions v. Air Pirates

Papers written in 2010:

  • American Cotton Tie Co. v. Simmons
  • Brandir International Inc. v. Cascade Pacific Lumber Co.
  • Carson v. Here’s Johnny Portable Toilets, Inc.
  • Continental Paper Bag Co. v. Eastern Paper Bag Co.
  • Dallas Cowboys Cheerleaders v. Pussycat Cinema
  • Dawn Donut v. Hart’s Food Stores
  • Gilliam v. American Broadcasting Companies
  • Kalem v. Harper Brothers
  • Tilghman v. Proctor

Papers written in 2009:

  • Apple Computer, Inc. v. Franklin Computer Corp.
  • Burrow-Giles Lithographic Co. v. Sarony
  • Inwood Labs., Inc. v. Ives Labs., Inc.
  • Parke-Davis & Co. v. H. K. Mulford Co.
  • Sega Enterprises Ltd. v. Accolade, Inc.
  • Zacchini v. Scripps-Howard Broadcasting Co.