June 30, 2014 (adding the Juicy Whip case to the patent section )

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June 30, 2014

(adding the Juicy Whip case to the patent section_)



Government S-1130

Allan A. Ryan

Monday and Wednesday, 6.30 to 9.30 p.m.

Room: 104 Harvard Hall

Course home page: http://isites.harvard.edu/k103249

Section meetings Tuesdays, 5.15 to 6.15 PM Boston time, 1 Story Street, Room 302 – and online in real time.
Music, science, art, literature, technology, advertising, entertainment: this course examines intellectual property and the legal and social means that have developed over time to encourage and control it. The objective is to introduce the basic concepts underlying IP, to examine how it operates in the real world, and to enable students who have little or no hands-on experience to deal intelligently with the conflicting legal, social and political forces that will shape its future.
Traditionally, intellectual property is defined as the creative works – books, music, art, inventions and discoveries, software, brand names, and the like -- that are protected by copyright, trademarks and patents. We will look at each of those legal structures, together with related areas such as licensing and trade secrets. We will also consider how concepts of intellectual property are being shaped by the digital environment, examining the political and legal issues surrounding , keyword advertising, patent trolls, and other phenomena. We will survey the emerging globalization of intellectual property, look at how the music industry has responded to file-sharing, examine the influence of IP on universities (and vice versa), and conclude with a look at IP’s future.
Throughout, we will consider the social utility of intellectual property, asking questions such as, what are, or should be, the acceptable boundaries of copying, imitation, parody, and sampling that draw on protected works? How do opposing political and economic interests shape the development of IP law?

Does our IP structure protect too much? Too little? The wrong things?

The course develops in two broad stages: the first, prior to the midterm exam, examines the basic principles of intellectual property: the nuts and bolts of copyright, patents, trade secrets and trademarks. After the midterm, we look at how IP operates in the real world, considering topics such as university licensing of technology; publisher-author book contracts; the law of music and file-sharing; the IP of design and fashion; and abuse, criticism and reform of the US patent system.
The focus is primarily on U.S. law and practice, including the international regime of treaties and practice in which the U.S. operates. This is not a “how-to” course; we will not emphasize the mechanics of applications or the specialized procedures of the government’s patent and copyright offices. Because a study of intellectual property is necessarily an inquiry into what the law allows and forbids, and how the law interacts with social and economic interests, much of our focus will be on broad legal issues. No prior knowledge of the law is required for the course.
Class and sections: Harvard Summer School is a highly concentrated academic environment, covering a full semester’s study in six weeks. Therefore, class attendance is required. The class meets twice a week for three hours in a lecture/discussion format. There will also be a weekly section that is mandatory for students taking the course for undergraduate credit and optional for those taking it for graduate credit. Noncredit students (auditors) do not take the exams and do not receive a grade. They are welcome to attend sections.
Distance students: This course is offered in the Summer School’s distance-education program. Students electing this option must adhere to the Summer School’s requirements for distance students. For information, see http://www.summer.harvard.edu/courses/DistanceEd/ Or contact AcademicServices@dcemail.harvard.edu. Class sessions will be posted on the course website within 24 hours. Distance students will be able to log on to section meetings. All registered students can access the lectures and sections on video, and distance students are welcome to attend class in Cambridge at any time.
Exams and course grades: Students taking the course for credit will have a midterm and a final exam. The midterm exam is one hour; the final exam is three hours. See syllabus below for dates. Examinations will be administered online for all students (except noncredit students) during a 24-hour window; students will take the exam at their convenience during that period. For undergraduates, the course grade is based on the final exam (60%), the midterm (30%) and participation in section (10%). For graduate-credit students, the course grade is based on the final exam (70%) and the midterm (30%).
Readings: There is a considerable amount of reading for the course; lectures will assume that students have read the material and are prepared to consider the issues raised.

The instructor: Allan A. Ryan is Director of Intellectual Property for Harvard Business School Publishing, the publisher of Harvard Business Review, the books of the Harvard Business Review Press, Harvard Business School Cases, and digital e-learning materials. From 1985 to 2001, he was University Attorney in the Office of General Counsel at Harvard, specializing in intellectual property, cultural property, and litigation. A graduate of Dartmouth College and the University of Minnesota Law School magna cum laude, he was a law clerk for Justice Byron R. White of the United States Supreme Court and practiced law in Washington before coming to Harvard. He is a member of the Massachusetts Bar, the Intellectual Property Section of the Boston Bar Association, and the Copyright and International Copyright Protection Committees of the Association of American Publishers.
Office hours: Mondays and Wednesdays, 5.30 to 6.30 (prior to class). Because my office is in Watertown, please e-mail me at ryan5@fas.harvard.edu if you would like to meet during these hours and we’ll arrange a convenient spot in Harvard Square. I am happy to meet at other times – just e-mail me.
The teaching assistants are

Daniel Dardani, head teaching assistant, B.A., University of Rochester (Physics/Political Science), a Technology Licensing Officer at the Massachusetts Institute of Technology, expert in licensing inventions and commercializing university technologies in the fields of computer science, software, algorithms, digital imaging and photography, video games, wireless, mobile and information technologies. Office Hours: Please e-mail ddardani@mit.edu to arrange.

Albert Elia, A.B., Harvard University (Applied Mathematics/Computer Science), J.D., Northeastern University Law School. Former director of product development for the industry leader in oncology management systems. Office Hours: Please e-mail aelia@fas.harvard.edu to arrange.

Useful websites

www.copyright.gov: The United States Copyright Office, a branch of the Library of Congress. A very good introduction to U.S. copyright law and practice, and links to primary sources.
www.uspto.gov: The United States Patent and Trademark Office. Introduction to patent and trademark issues, and search engine for patents and registered trademarks.
www.google.com/ Click “Patents” from the “more” menu at the Google main page. A better patent search engine than the USPTO’s.
www.wipo.int: The World Intellectual Property Organization. Broad-based international organization. Website has helpful introduction to many IP issues and links to treaties and other primary sources.
www4.law.cornell.edu/uscode/17/ : The Copyright Act of the United States (Title 17, United States Code). Useful if you need to find a particular section of the Copyright Act.
www4.law.cornell.edu/uscode/35/ : United States Patent Law (Title 35, United States Code).

Required Texts:
Dan Hunter, Intellectual Property (Oxford University Press, 2012) ISBN: 978-0-19-534060-0 A broad introduction to the basics of IP and the issues we will consider in this course.
Cases and related readings. We will discuss particular issues in the context of actual cases decided by courts, all of which will be found in the readings folders on the course website.
Robert Gorman, Copyright Law , Federal Judicial Center (2d edition, 2006). A full-length legal treatise on copyright, written for federal judges, but in a readable, non-technical format. A good reference work. And free, too. Download at www.fjc.gov, click on “Publications and Videos,” and enter Gorman as author.
Readings and class discussions are segmented by week, not by individual classes. After the first week, please do all the week’s readings prior to the Monday class meeting.
Materials in italics below will be found in the reading folders on the course home page. (Some cases in the folders will be reached only later in the course.)
Week of June 23

Introduction to intellectual property.

Readings: Hunter, Preface and Introduction

Introduction to the study of cases (in the copyright cases folder)

The basics of copyright

Readings: Hunter, Ch. 2

Cases: Feist Publications v. Rural Telephone Service

Morrissey v. Procter and Gamble

Roth Greeting Cards v. United Card Co.
The limits of copyright, and the rights of copyright owners

Cases: Aalmuhammad v. Lee

Klinger v. Conan Doyle

Non-literal infringement of copyright:

Gorman, Ch. 2

Cases: Nichols v. Universal Pictures

Funky Films v. Time Warner

LaPine v. Seinfeld

Steinberg v. Columbia Pictures I
The rights of everyone else: Copyright and Fair Use

Gorman, pp. 139-56

Cases: Harper & Row v. The Nation

Campbell v. Acuff-Rose Music

Brownmark Films v. Comedy Partners (South Park)

Steinberg v. Columbia Pictures II

Seltzer v. Green Day, Inc.
First sale doctrine and digital media

Cases: Capitol Records v. ReDigi

Week of June 30

Patent. Its historical development. Its doctrinal bases. The scope of its protection. Comparison to copyright. The patent process in the US.

Find Google Patent Search and download the PDF of US Patent 5,941,785, which we will discuss in class. (The PDF is the actual patent.)

Readings: Hunter, ch. 3, pp. 81-105 (n.b., the section on priority on pp. 97-98 is out of date. The US adopted a first-to-file priority in 2011); pp. 108-16 (top 2 lines).
The importance of claims

Cases: Larami v. TTMP

The meaning of utility

Cases: Juicy Whip v. Orange Bang

Patentability of biotechnology products

Cases: Diamond v. Chakrabarty (1980)

Mayo Collaborative v. Prometheus Labs (2012)

Association for Molecular Pathology v. Myriad Genetics (2013)

Skim Part I; focus on parts II and III

Alice Corp. v. CLS Bank (2014)
Analysis of the cases on patentability:

Mayo Collaborative v. Prometheus: www.scotusblog.com/?p=141123

Myriad Genetics: www.scotusblog.com/?p=164911

Alice Corp. v. CLS Bank: www.scotusblog.com/2014/06-supeme-court-leaves-patent-protection-for-software-innovation-intact
Week of July 7

Trademarks. Historical development and doctrinal bases. Scope of protection. Statutory and regulatory regime in the US.

Readings: Hunter, ch. 4

Cases: AMF v. Sleekcraft Boats

Midwestern Pet Foods v. Societe des Produits Nestle

Murphy Door Bed Co. v. Interior Sleep Systems

Playboy Enterprises v. Welles

Zatarains v. Oak Grove Smokehouse

Supplemental reading on Trademark Confusion

Coach v. Goodfellow
Week of July 14

The midterm exam is available online for 24 hours, beginning at 12.00 noon Boston time Monday, July 14. The exam is one hour. Log on during the window at your convenience.

Note: All students (except noncredit students) take the exam online. Distance students who are not in the Eastern US time zone must adjust the time for the zone you’re in.

Trade Secrets.

Readings: Hunter, ch. 5

Cases: Airwatch LLC v. Mobile Iron

Rockwell v. DEV Industries

Dupont v. Christopher

U.S. v. Howley
Licensing of intellectual property: the author-publisher book contract


Harvard Business Review International Magazine License

HBR Press’s Book Publishing Contract

Harvard ManageMentor® License Agreement

MIT’s HDTV License Template

The international regime of IP protection. Berne, Paris and other elementary Treaties. International cooperation and reciprocity for copyright, patents, trademarks. World Trade Organization and TRIPS (Trade-related Aspects of Intellectual Property) Treaty.

Readings: Text on International Issues, in course folder

Congressional Research Service, Intellectual Property Rights and International Trade (February 2011, pages 8-9, 10-12. 17-19, 21-22, 31-32)
Global IP Issues: The Case of China

US Trade Representative, 2013 Special 301 Report (go to ustr.gov, search “2013 Special 301”)

pp. 4-9, 13-15, 18-22, 25-26 (developments); 31-38 (China)

Week of July 21

Technology transfer from academia to industry.

“The Bayh Dole Act at 25,” pp. 1-11, 17-25


Licensing Reading Folder:

University Licensing Revenue Fiscal Year 2011

Case of Dr. Karwan
Patent Wars

Readings are in “Patent Wars” file in Licensing reading folder
Music and the business of music


Gorman, chapter 6, pp. 110-16, 121-27 [See “Optional” Texts above, to download the Gorman text.]

Cases (in copyright reading folder) :

A&M Records v. Napster

MGM v. Grokster

Newton v. Diamond

Bridgeport Music v. Dimension Films

Peters v. Kanye West

Artists’ termination rights:

“Record Industry Braces for Artists’ Battles Over Song Rights,” New York Times, August 15. 2011 (www.nytimes.com)

“A Village Person Tests the Copyright Law,” New York Times, August 16, 2011 (www.nytimes.com)

“Village People Singer Wins a Legal Battle in Fight to Reclaim Song Rights,” May 8, 2012 (http://artsbeat.blogs.nytimes.com)

[If you want to pursue this subject, there’s a good podcast at

http://artsbeat.blogs.nytimes.com: “New Owners for Vintage Hits?”, January 18, 2013]
Miscellaneous (in Music reading file):

“The Music Copyright Enforcers”

“Obit for a Music Publisher”

Week of July 28 (final class meeting is July 30)

The marriage of patent, copyright and trademarks: protection of design and fashion.

Designs: Hunter, ch. 3 portions dealing with design patents

Cases: Sturdza v. United Arab Emirates (copyright; in copyright folder);

Brandir v. Cascade Pacific (copyright)

Wal-Mart v. Samara Brothers (trademark)

Traffix Devices v. Marketing Displays (product design)

Apple v. Samsung (patent)

Scafaldi, Intellectual Property and Fashion Design, at http://ssrn.com/abstract=1309735

Watkins, “Copyright and the Fashion Industry”

Jackson, “Some Designers Say…”

Hot topics: The Google Books Litigation

http://topics.nytimes.com/top/news/business/companies/google_inc/google_book_search/index.html?scp=1&sq=Google%20book%20settlement&st=cse (Read “Google Book Search”)

Hot topics: Patent Trolls

Readings: “Patent Trolls” in Hot Topics reading folder
Hot topics: Publicity, Privacy and Social Media

Readings: TBD

Week of August 4

Final Examination: The final examination will be online this week for a 24-hour window, tentatively Monday August 4 at 12.00 noon Boston time, but subject to confirmation by end of June.

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