CS 5060, Fall 2009 Digital Intellectual Property Law u Class web page at: u No textbook. Online treatise at: u Wall Street Journal subscriptions:

Topics to be covered u Software IP law –Copyrights –Trade secrets –Patents u Contracts and licenses –Particularly open-source and “free” u Digital works copyright u Current topics

Organization of each class u Reading assignment on web page –Sections from treatise, new material, cases and articles –Full treatise available online u Short discussion of material u Questions answered u In-class quiz –Graded 0 (didn’t take), 1 (below standards), 2, 3 (above standards), and 4 (exceptional)

Grading u Grade will be based on homework assignments, and midterm and final examinations –Essay exams –Patent drafting homework u Must have an average grade of 2.0 on in-class exams –One letter grade lower if less than 2.0 and two letter grades lower if less than 1.5 –This will be difficult to do if you miss more than one exam

Introduction to the law

Sources of law u Statutory law –Passed by Congress or a legislature u Administrative law –Regulations of an administrative agency authorized by statute u Common law –Legal principles derived from court decisions –Different from court interpreting a statute

Court structure: jurisdiction u Parallel federal and state systems –Federal jurisdiction because case arises under federal constitution or law, diversity of parties –Patents, copyrights in federal court –Trade secrets, contracts in state courts –In federal court if both state and federal issues u Must have both subject matter and personal jurisdiction

Court structure: trial courts u Trial court jurisdiction –General jurisdiction –Special jurisdiction: bankruptcy, small claims, taxes, federal claims, etc. u Decides questions of fact and law –Law is always determined by the court –Fact is determined by jury or court

Court structure: trial courts u Preliminary injunctions –Order to halt a particular conduct –Issued only if there is likelihood of success on the merits and irreparable damage u Summary judgement –Case can be decided by judge solely as a matter of law, because no relevant facts in dispute –May assume that disputed facts go against party moving for summary judgement

Court structure: appeals u Appeals of errors to higher court as a matter of right u Generally questions of law u Great deference given to findings of fact by trial court u Generally heard by three judge panel, sometimes by all judges (en banc)

Court structure: appeals u All patent appeals to Court of Appeals for the Federal Circuit u Appeals when there is not a patent question to “numbered” circuit –Second and Ninth Circuits have a long history with copyright appeals

Federal Courts of Appeal Handy federal court finder at:

Court structure: appeals u Appeal to highest court by permission –Writ of Certiorari (“grant cert”) u Few intellectual property cases go to the Supreme Court –Cases taken because of important national issue –Cases taken if there is a difference between the circuits –But recently, reconsidering Federal Circuit rulings on general legal matters

Source material u Statutes –Public laws passed by Congress –Codified in the United States Code »Cited like 17 U.S.C. 101 u Legislative history –Primarily committee reports »Drafted by staff to explain provisions »Summarizes legislative process –Sometimes floor remarks »Floor debate not common on IP bills

Source material u Court decisions –Contained in various reporters »West federal reporters (F., F.2d, F.3d, F.Supp) »Also reporters for state decisions »BNA’s United States Patent Quarterly (USPQ) »Cited like 123 F.3d 456 –Other information available »Summaries of key points in a case (headnotes) »Digests of cases by topics, annotated statutes »List of cases citing the case (Shepard’s)

Source material u Court decisions –Cases often go beyond the particular issues, and contain a more general discussion »Called “dicta,” often helps predict how a case with different issues might be decided »Constitution limits federal courts to actual cases and controversies –What we are looking for »Interpretation of statutory language »Procedures and rules to be followed in future cases »Common law principles, beyond the statutes

Source material u Administrative regulations –Collected in Code of Federal Regulations (CFR) –Copyright Office and Patent and Trademark Office may issue only procedural rules »Except for royalty rates and DMCA exemptions u Agency reports –Sometimes a report on a particular topic is requested by statute u Other material –Law reviews –Treatises or books

Reading assignment u For next class – Chapter 1 - Copyrights