Notre Dame Law Review Explores IP Law at Annual Symposium

Author: Lauren Love

The Notre Dame Law Review hosted some of the leading scholars in intellectual property law for its 2016 symposium: Negotiating Intellectual Property’s Boundaries in an Evolving World. The symposium explored persistent and emerging issues relating to overlap in intellectual property law.

Speakers discussed the relationship between different forms of intellectual property law and the ways new technologies might alter those relationships; mechanisms for policing the boundaries between those forms of protection or between intellectual property and other legal protections; and the territoriality and the geographic scope of intellectual property rights.

“Overlap issues are increasingly important in intellectual property law,” said Mark McKenna, associate dean for faculty development and professor of law. “The subject matter of many areas of IP has grown significantly over the last several decades, new technologies have called into question traditional legal categories, and globalization and international trade have put pressure on traditional notions of territoriality.”

These developments, along with increasingly strategic use of multiple forms of intellectual property protection, have made boundary issues much more pressing, McKenna said.

The keynote speaker for the symposium was Judge David W. McKeague of the U.S. Court of Appeals for the 6th Circuit. McKeague was the author of an influential dissenting opinion in Varsity Brands, Inc. v. Star Athletica, LLC, a case dealing with the copyrightability of the design of cheerleading uniforms. The Supreme Court granted certiorari in Varsity Brands last spring and heard oral arguments on October 31. McKeague discussed the case and his approach to the difficult issue of the separability of features of a useful article.

(McKenna co-authored an amicus brief in Varsity Brands, along with Mark Lemley, William H. Neukom professor of law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology, Stanford Law School; Christopher Jon Sprigman, professor of law at New York University School of Law; and Rebecca Tushnet, professor of law at Georgetown Law.)

Other speakers and topics at the symposium included:

McKenna and Lucas Osborn, associate professor of law, Campbell Law School, “Trademarks and Digital Goods”

Perry Saidman, principal, Saidman Design Law Group, “Design Patent Functionality”

Pamela Samuelson, Richard M. Sherman distinguished professor of law and information, UC Berkeley School of Law, “Strategies for Discerning the Proper Boundaries of Copyright and Patent Protections”

Tushnet, “Raising Walls Against Overlapping Rights: Copyright Preemption and the Right of Publicity”

Laura Pedraza-Fariña, assistant professor of law, Northwestern University Law School, “Teams, Spillovers, and Overlapping Patent Rights”

W. Nicholson Price II, assistant professor of law, University of Michigan Law School, “Expiring Patents, Trade Secrets, and Competition”

Arti Rai, lvin R. Latty professor of law and co-director, Duke Law Center for Innovation Policy, Duke University School of Law, “Overcoming Rights-Protected Biomedical Data Silos”

Graeme Dinwoodie, Professor of intellectual property and information technology law, University of Oxford Law, “Territoriality in the Protection and Enforcement of Trademark Rights”

Timothy Holbrook, professor of law, Emory University School of Law, “Boundaries, Territoriality, and Patent Infringement Remedies”

Lemley, “Did eBay Irreparably Injure Trademark Law”

Joseph Bauer, professor emeritus of law, Notre Dame Law School; Joanne Clifford, director, Intellectual Property and Entrepreneurship Clinic, Notre Dame Law School; and Shubham Mukherjee, intellectual property attorney, Whirpool Corporation, were moderators.

The Notre Dame Law Review hosts an annual symposium that brings together well-respected and diverse speakers on a variety of timely and thought-provoking legal topics. The symposium provides an environment for intellectual engagement and an opportunity to wrestle with pressing legal issues.