Intellectual Property Survey, Fall 2008 (Evening)

Course Description

This course covers domestic intellectual property laws - patent, copyright, trademark, and trade secret - through statues and cases. It is designed to afford the student who intends to practice in other areas an acquaintance with key IP issues, principles and doctrine, and to provide the intellectual property and information law specialist an introduction to the overall subject.  The course will provide roughly equal treatment of patent, copyright and trademark law, approximately four weeks for each, with the remainder applied to the law of trade secrets, introduction, and/or review.

Generally Applicable Syllabus Information

Please read this document carefully, as it sets forth course policy for attendance, preparation for and participation in class, the use of computers, examinations and grading, and other items. A complete understanding of this document is necessary to take full meaning from the Class Schedule and Other Information set forth immediately below.

Class Schedule and Other Information

Name:	Intellectual Property Survey
Class # / Section #:	5201 / 23422
Place:	TU2 - 215
Time:	Monday & Wednesday, 7:30 p.m. to 8:20 p.m.
Make-Up Classes:	In some weeks, there will be a single 100 minute continuous class from 7:30 p.m. to 9:10 p.m., which will occur in lieu of two 50 minute classes.
Credit:	2 Semester Hours
Required Text:	Robert P. Merges, Peter S. Menell and Mark Lemley, Intellectual Property in the New Technological Age (Revised 4th ed. 2006) (Aspen Law & Business). There is also a supplement to update this edition of the text.
Supplement:	There is no requirement to purchase a statutory supplement, but the book: Schechter's Selected Intellectual Property and Unfair Competition, Statutes, Regulations & Treaties, 2008 ed. By Roger E. Schechter is a useful reference Certain documents may be assigned from time to time from sources other than the casebook. These documents will be provided via links in the class assignment table below or in a separate page of class links. Paper copies of these documents will typically not be provided in class, so students should plan to print them or review them electronically.
Prerequisites:	Non-Law: None. Law: Standard 1st-year Law courses
Grading:	The course grade will be primarily based on an open-materials final exam. "Primarily" means that at least 90% of the course grade will be based on the final exam. Most probably 100% of the course grade will be based on the final exam, but I want to have given notice of the possibility of a small percentage of the grade coming from other sources, such as one or more small exercises (including short in-class quizzes). I also give notice that, alternatively, if I assign such exercises or quizzes, I may do so in an un-graded manner, but requiring their completion under the penalty of recording an "absence" for attendance purposes for that entire evening.  Notwithstanding the above, my assessment of your in-class participation performance will not be directly used as a component of your grade.  However, I do reserve the right to call on students in class to discuss aspects of the assigned materials, and any student who is found not prepared for class will be counted as absent for that entire class meeting.
Brief Description of Coverage:	This class will meet either in two 50 minute classes or in one 1 hour and 40 minute block each week. The coverage goal is approximately thirty to 50 pages per block. Assignments will be detailed in the table below and updated as the semester progresses.
Required Attendance:	Presuming 14 total blocks, FIVE OR FEWER 50-minute class absences constitute attendance meeting the eighty percent requirement. More than five absences means that the eighty percent requirement is NOT met.  Attendance will be taken via a roll sheet passed throughout the class each session.  "Pick your seat" on the seating chart on the First Night of Class.
Final Exam Date/Time:	Dec. 10, 6:00-9:00PM BLB3 (3 hours)
Final Exam Information:	To Be Posted
First day/week's assignment:	Read this course web page, as well as any linked  and listed reading assignments detailed in the table below for the first day/week of class.
Access to class web page:	After the first two weeks of class, access to this class web page may be restricted to students enrolled in the class, based on a student's UHLC computing account.
Audio Recording of Class Sessions:	I reserve the right to audio tape the class sessions using a portable recorder attached to my person and post links to the audio tracks on the class web site for the sole and limited educational purpose of allowing students to stream the recorded sessions to review or to enable students who missed a class to hear the class presentation. Any audio tracks created will be deleted and destroyed shortly after the final exam for the class.  Since I call on students, there is a slight chance that your contributions to class discussion, whether voluntary or while on call, may be included in the audio recording. The chance is slight because the recording technology I use does a poor job of picking up any voices other than my own. Your continued registration in this class indicates your acquiescence to any such incidental recording for the purposes described above unless, if you have concerns about this, you come speak with me as soon as possible but in no event later than the end of the second class meeting. Furthermore, students in the class may make their own personal audio recordings of the class for the sole purpose of there own use in studying for the class.  This permission is given with the restriction that such personal recordings may not be distributed or made available in any way to any other person, including to their classmates.
Contact Information & Office Hours	Faculty Web Page: http://www.uh.edu/~lpinsky Office Phone: (713) 743 3552 Email: pinsky@uh.edu Office Hours:      Day: MWF 10-11 a.m.412 SR1      Evening: M & W 7:00-7:30 p.m. & (@ a Law Center location To be announced)
Computer Use	The use of laptop computers in class for course-related work is generally required. The lecture materials will be distributed as computer readable material only. Checking email or non-course related web-browsing during class is counter-productive, distracting to fellow students, and generally and unwise use of class time.  Computer use for final exams will be permitted to the extent that it is in conformance with Law Center policy.

Course Materials Links by Category

The links below are for general reference and may be used for some class  assignments.

Patent Law

n United States Patent and Trademark Office (PTO) Patent Page n Selected patent law sections from 35 U.S.C. extracted from the U.S. PTO consolidated laws

Copyright Law

n United States Copyright Office

n U.S. Copyright Office web page for the U.S. Copyright Statute

Trademark Law

n United States PTO Trademarks Page

· PTO Trademark Policy and Procedures

n Lanham Act

Course Coverage Table

The tables immediately below provide the detailed assignments for this course. It also may provide links to materials for each class and other items related to the course. In order to allow flexibility in the class, assignments beyond those posted for the next week are subject to change; therefore, students who may wish to read ahead are urged  to contact the professor before doing so. The rate of progress through the modules depends on the class dynamics.

Class presentation slides will be provided as links below in association with each module title.  I will generally have the slides available about a week before we start a new module. WARNING:  I tend to add and edit slides immediately prior to class (Any such changes will be uploaded after the class in which they are shown).  If students want hardcopy of the slides for use during class, please download and print the linked slides file.

After each class session, if I have made an audio recording of the class, the class date will become a hyperlink to the audio for that class.

The casebook makes liberal use of "problems" - which in many cases are fact patterns adopted from actual cases. The problems' purpose is to illustrate twists in doctrine and provide additional context. When a problem is included in the assigned reading, there is no reason to write out an answer to the problem.  Rather, it is sufficient to think about the problem and if desired make a few notes.  Problems in the assigned reading may be the focus of class discussion, but will not always be touched upon in class.  Case names are listed in the table below as assignments.

Sometimes there are several paragraphs of introduction before the case when the case is the lead case in a new subheading in the book.  These introductory paragraphs are part of the assignment and should be read along with the case.  In the table each casebook assignment is given a page range to go with the assignment title.  Unless the "Comment/Note" column indicates otherwise, read the entire assignment, encompassed on the indicated pages, including any notes or associated problems.

This course is designed to track the Modules in the course being recently taught by Professor Vetter.  Many of the materials used in the evening section will be the same as Professor Vetter employed in the day section of this course, and I gratefully acknowledge here that much use has been made of Professor Vetter’s materials with his express permission.  I may also supplement this material with material from Professor Janickie’s concurrent course. I reserve the right to omit material that the day section might cover as well as to introduce material not covered in the day section.

Modules 1 & 2:      Introduction and Overview &Trade Secrets (slides)

Assignment	Pages	Comment/Notes	Start OH#	Date	Call Group
Introduction	1-2	skim	1.1	Aug.25 (100 min)
The Natural Rights Perspective	2-5	skim, stop before Prob. 1-1
The Utilitarian Economic Incentive Perspective	10-19	Skip Prob. 1-2
Overfview of IP	19-30	Skip  Prob. 1-3
Trade Secret Protection-Introduction and Overview	33-36		2.1
Uniform Trade Secret Act	36-37	Try to parse out the elements of TS misappropriation from the model statute
Theory of Trade Secrets	37-39
Metallurgical Indus. v. Fourtek	39-47
Wed. Aug. 27		NO CLASS		Aug. 27
Mon. Sept. 1 (Labor Day)		NO CLASS		Sept. 1
Rockwell v. DEV	49-54	stop after the first two  paragraphs under note  1 on pg. 47	2.10	Sept. 3 (100 min)
Rockwell, notes 3 & 4	55-56
Problem 2-5	57-58
Disclosure of Trade Secrets	58-62
Dupont v. Christopher	65-66	Read Prob. 2-7
Smith v. Dravo	67-72	Stop before Problem 2-9 on page 72	2.20
Kadant v. Seeley Machine	74-80	Stop before sec.4 on page 80
Warner-Lambert v. Reynolds	101-95	stop at end of pg. 104
Employment Agreements
Mon. & Wed. Sept. 8 & 10		NO CLASS		Sept. 8 & 10

Module 3 - Patent Law (slides)

Assignment	Pages	Comment/Notes	Start OH#	Date	Call Group
Mon. Sept 15, Hurricane IKE		NO CLASS		Sept. 15
Wed. Sept. 17		NO CLASS		Sept. 17
Patent Law: Historical  Background	117-124	Skim through page 124		Sept. 22 (100 min)
An Overview of the Patent  Laws	124-127		3.1
Read the 4-page patent available here. This is a different kind of reading. I think it would be a good investment if you spend at least an hour with this document.  Trace the words to the picture via the numbered items.  Write down the key inventive aspect of the claimed invention.  Also, write down how claims 2 & 3 restrict or narrow this aspect.	n/a	Note any questions you have about why the patent instrument looks and is written as it is.  I may ask some members of the class to present their questions.
The Elements of Patentability	128		3.10
Diamond v. Chakrabarty	128-135
Parke-Davis v. H, K. Mulford	135-139
Note on Different Types of  Utility	149-159	Skip Probs. 3-5 & 3-6 and end at  Section 3. Skim In Re Fisher p. 149-152	3.20	Sept. 24 (100 min)
Describing and Enabling the         Invention	159-165	End before Incandescent Lamp
Novelty and Statutory Bars	186-186
Rosaire v. National Lead	187-191	stop at Notes on the Inherency Doctrine
Statutory Bars: Publications - In  re Hall	192-195	stop before Problem  3-8 on pg. 195
Statutory Bars:    Public Use-  Egbert v. Lippmann	196-200	stop before note 5 on  pg. 160
The Experimental Use  Exception-  City of Elizabeth	203-207	before "Priority  Rules" on pg. 166	3.30
Nonobviousness - Graham v.  John Deere	214-226			Sept. 29 (100min)
In re Vaeck	226-229		3.40
In re Dembiczak	229-233	stop before  "Comments and  Questions" on pg.  233
"Secondary" Considerations	237-238
Infringement	239--241
Phillips v. AWH Corp.	241-252	stop before  Comments  pp 252	3.50
Literal Infringement - Larami v.  Amron	257-261			Oct. 6 (100 min)
The DOE - Warner-Jenkinson  v. Hilton Davis	263-268	before "Festo . .  ." on pg. 237
Festo…	268-277	stop before  "Comments and  Questions" on pg.  245	3.60
Note 2	279
Festo on remand to the Federal  Circuit - read this summary of  the Festo remand decision	n/a	Note 2 p. 279
Johnson & Johnston v. R.E.  Service	281-288		3.70

Module 4 -  Copyright Law (slides)

Assignment	Pages	Comment/Notes	Start OH#	Date	Call Group
A Brief History of Copyright	383-  388	skim up to before "2.  An Overview of the  Copyright Regime"	4.1	Oct. 13 (100 min)
An Overview of the Copyright  Regime	388-  389
Philosophical Perspectives on  Copyright	390-  392
Original Works of Authorship	392-  394
Feist v. Rural Telephone Service	394-  402	Do Problem 4.1
Fixation	402-  405
Formalities	405-  410	stop before "Note on  the Restoration of  Foreign Copyrighted  Works" on pg. 410; skip Problem 4-2.
Copyrightable Subject Matter	411-  412		4.10
Baker v. Selden	412-  417
Problem 4-3	417-  418
Morrissey v. P & G	418-  421	Do Problems 4.4 & 4.5		Oct 20 (100 min)
Useful Article Doctrine	421-  423
Brandair v. Cascade Pacific	423-  431	stop before Note 4 on  pg. 431
Problem 4-6 through Problem 4-8	431		4.20
Government Works	431-  435	stop before Problem  4-9, pg. 435
Domain and Scope - Illustrative  Works	436-  443	skip Problem 4-11
Roth Greeting Cards v. United  Card	443-  445	Skip Problems 4-12 & 4-13.
Ownership and Duration - Work  for Hire	446-  447		4.30
CCNV v. Reid	447-  454	stop before "Joint  Works", pg. 454
Duration and Renewal	465-  468	stop before Problem  4-18, pg. 468		Oct. 27 (100 min)
Division, Transfer and Termination of Transfers	469-  474	skim
Traditional Rights of Copyright  Owners	474-  476	stop before "Arnstein…", pg. 476
Copying - Arnstein v. Porter	476-  482	Skip Problem 4-20	4.40
Improper Appropriation - Nichols v. Universal	482-  490
Improper Appropriation - Steinberg v. Columbia	490-  497	stop before Problem  4-21.
Problem 4-21 through just  before "Anderson . . ."	498-  501		4.50
Distribution Right	510-  513	Skip Problem 4-26
NOV. 1 & 3		NO CLASS		Nov. 1 & 3
Public Performance and Display Rights	514-  516			Nov. 10 (100 min)
Limits on various rights	516-  518	Stop before Problem 4-27
Fair Use - Harper & Row v.  Nation	522-  535	stop before Problem  4-29, pg. 535
Sony v. Universal	536-  541	Stop before Problem 4-32	4.60
MGM v. Grokster	(Link)
Am. Geophysical v. Texaco	541-  555	stop before "c.  Parodies", pg. 555
Campbell v. Acuff-Rose	555-  566	Stop before Problem 4-33	4.70
Other Defenses Sony v. Universal (also)	567-  580	skim, stop before  "Digital Copyright  Law", pg. 580

Module 5: Trademark Law (slides)
Assignment	Start Page	Comment/Notes	Start OH#	Date	Call Group
Introduction	633-640		5.1.a	Nov. 12 (100 min)
What can be protected as a mark?	640-642
Qualitex v. Jacobson	642-650	stop at "Distinctiveness", pg. 650
Distinctiveness - Zatarains v. Oak Grove	650-664		5.10.a
Two Pesos v. Taco Cabana	664-669	stop before "Wal-Mart", pg. 669
Wal-Mart v. Samara Brothers	669-676	Do Problem 5-1	5.20
Priority - Zazu v. L'Oreal	676-686			Nov. 17 (100 min)
Geographic Limitations	686-694	stop before Comments and Questions
Trademark Office Procedures	695-699	Do Problem 5-4	5.30
Geographic Marks - In re Nantucket	700-704
Surnames as Marks	704-706	Do Problem 5-5
Incontestability - Park 'N Fly v. Dollar Park and Fly	709-715
Infringement – 1-800 Contacts v. When U.com	715-725	Do Problem 5-6		Nov. 24 (100 min)
Louis Vuitton v. Haute Diggity Dog	Supp. 25-32
AMF v. Sleekcraft	725-732		5.40.a
Types of Confusion	732-737	Do Problems 5-7 & 5-8
Dilution	737-740	stop before "Nabisco", pg. 740
Read Moseley v. V. Secret Catalogue, 537 U.S. 418 (2002) (NOTE.1: the last eight pages of the majority opinion are the most important part)	n/a	(NOTE.2: you need only read pages 4-19 of the .pdf file; which skips the court-supplied syllabus and the concurrence. The actual case is separately paginated, pages 1-16)
Read the Trademark Dilution Revision Act of 2006 (15 USCA 1125(c) West Supp. 2007)	n/a
Genericness - Murphy Door Bed v. Interior Sleep	787-798		5.60	Dec. 3 (100 min)
Functionality - TrafFix Devices v. Mktg. Displays	798-807	Do Problems 5-11 & 5-12
Abandonment - MLB v. Sed Nol Olet	808-816	Do Problems 5-13 & 5-14	5.70.a
REVIEW FOR FINAL