1 How To Find and Read the Law and Live to Tell (and Talk) About It Steve Baron January 29, 2009

2 “Laws are like sausages, it is better not to see them being made.” Otto von Bismarck

3 Today’s Agenda  Introduction to How IP Law Is Made  Introduction to Case Analysis

4 How Does IP Law Develop?  Federal and State Legislation e.g. Trademark Act, Copyright Act, Patent Act, Illinois Trade Secrets Act e.g. Trademark Act, Copyright Act, Patent Act, Illinois Trade Secrets Act  Federal and State Case Law e.g. Judge-made law emerging out of judicial opinions (i.e. “common law”) e.g. Judge-made law emerging out of judicial opinions (i.e. “common law”)

5 How Does IP Case Law Get Created  Individual parties bring a case to a trial court’s attention  Litigation ensues  A decision or verdict is issued  An appeal takes place  An appellate court issues an opinion  The opinion becomes part of the common law

6 Layers of Federal Courts United States Supreme Court Citation e.g. Jones v. Smith, 250 U.S. 345 (1982) United States District Courts Citation e.g. Jones v. Smith, 415 F. Supp (N.D. Ill. 2001) United States Circuit Courts of Appeal Citation e.g. Jones v. Smith, 327 F.3d 215 (7 th Cir. 1999)

7 How to Find the Law on the Web  Federal Legislation (the stuff from Congress) Type in title and sectionType in title and section e.g. Copyright = Title 17e.g. Copyright = Title 17 e.g. Infringement = Section 501 et. seq.e.g. Infringement = Section 501 et. seq.

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10 How to Find the Law on the Web  State Law

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12 How to Find the Law on the Web  U.S. Supreme Court Opinions

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14 How to Find the Law on the Web  Click “Opinions”  Opinions from 2004 to present  Find Eldred v. Ashcroft 537 U.S. 186 (2003) 537 U.S. 186 (2003)  Click on “Bound Volumes”  Click on Volume 537  Scroll down to page 186

15 How to Read A Case  Plaintiff a party who complains or sues in a civil action a party who complains or sues in a civil action  Defendant a party who is being sued by a plaintiff a party who is being sued by a plaintiff  Appellant a party who appeals from a decision by a trial or “lower” court a party who appeals from a decision by a trial or “lower” court  Appellee a party who responds to an appeal by appellant a party who responds to an appeal by appellant

16 How to Read a Case  Petitioner Party seeking appeal in the U.S. Supreme Court Party seeking appeal in the U.S. Supreme Court  Respondent Party responding to a petition to the U.S. Supreme Court Party responding to a petition to the U.S. Supreme Court  Writ of Certiorari An order of an appellate court granting or denying a petition to appeal An order of an appellate court granting or denying a petition to appeal

17 How to Read a Case  Amicus Curiae Friend of the Court Friend of the Court Non-parties who petition the court for permission to file legal briefs on behalf of their respective constituencies because the issues involved may have broad impact on them Non-parties who petition the court for permission to file legal briefs on behalf of their respective constituencies because the issues involved may have broad impact on them  Amici Plural of amicus curiae Plural of amicus curiae

18 How to Read a Case  Holding Narrow legal answer to the question posed by the case Narrow legal answer to the question posed by the case Binding on future cases that present the same issue Binding on future cases that present the same issue  Dicta Additional explanation within the opinion Additional explanation within the opinion Not binding on future cases that present the same issue Not binding on future cases that present the same issue

19 How to Read a Case  Affirmed When an appellate court agrees with the lower court decision When an appellate court agrees with the lower court decision  Reversed When an appellate court disagrees with and overturns the lower court decision When an appellate court disagrees with and overturns the lower court decision  Remanded When an appellate court sends a case back to the lower court for further proceeding When an appellate court sends a case back to the lower court for further proceeding

20 How to Read a Case  Complaint Initial document filed by plaintiff to start law suit Initial document filed by plaintiff to start law suit  Cause of Action The theory or theories of legal recovery articulated by plaintiff in the complaint The theory or theories of legal recovery articulated by plaintiff in the complaint e.g. Copyright infringement, breach of contracte.g. Copyright infringement, breach of contract  Motion An application to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of applicant. An application to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of applicant.

21 How to Read a Case  Motion to Dismiss Filed by a defendant early in a case to challenge the legal theories. Filed by a defendant early in a case to challenge the legal theories. Assumes all facts alleged are true but says that no legal claim exists Assumes all facts alleged are true but says that no legal claim exists  Motion for Summary Judgment Filed by either plaintiff or defendant Filed by either plaintiff or defendant No genuine issue of material fact is in dispute No genuine issue of material fact is in dispute Court can decide the issues without need for a trial Court can decide the issues without need for a trial

22 “The purpose of law is to prevent the strong always having their way.” Ovid