Forth Annual IP Scholars Forum Held Nov. 5


IP Scholars from across the country gathered at Akron Law on Nov. 5 for the forth annual Akron IP Forum. The Forum’s purpose is to bring together a small group of prominent scholars for intensive, high-level discussions on cutting-edge issues of common interest. Participating scholars may choose to have their papers published in symposium format in the Akron Law Intellectual Property Journal.

This year’s forum topic was “IP and the Supreme Court.”  Over the last few years, the Supreme Court has become involved with IP as never before. In patent law it has rendered six major decisions: Bilski (software and business-method patents) Festo (doctrine of equivalents), MedImmune (declaratory judgments), eBay (injunctive remedies), KSR (obviousness), and Quanta Electronics (first sale). The Court has been less active in copyright but still has decided Tasini (articles in databases), Eldred (copyright term extension) and Grokster (inducing infringement). Even in relatively stable trademark law the Court has decided Traffix (trade dress and patents), Wal-Mart (distinctiveness of trade dress), Victoria’s Secret (dilution) and Dastar (trademark protection for creative content).

Participating in the forum were Professors Jeff Samuels, Jay Dratler, Sam Oddi, Elizabeth Reilly and Ryan Vacca of Akron Law; Susanna Fischer and Elizabeth Winston  from Columbus School of Law – The Catholic University of America; Robert Reis from  University of Buffalo Law School; Liam O’Melinn  from Ohio Northern University School of Law; Michael Landau from Georgia State College of Law; and Thomas Folsom from Regent University School of Law. In addition two Akron Law editors-in-chief, Morena Carter (Akron Law Review) and Scott Chmielecki  (IP Journal), gave short presentations encouraging participants to publish their Forum papers with Akron Law Intellectual Property Journal.

This year's Forum began with a discussion of preliminary results from empirical research conducted by Professor Vacca on the Supreme Court's IP decisions.  Fortunately, his results confirmed the convention wisdom of recently increasing activity.  The attendees then discussed a number of dimensions of the Supreme Court's intervention, including the tension between formalism and substantive justice, between rules and standards, between the Federal Circuit's special expertise and the Supreme Court's generalism, and between legal norms and voluntary private arrangements of IP through contract.  The participants also examined the Supreme Court's general sense that something is wrong with IP, its prudential timidity in making corrections, and erosion of the public domain.  As usual, the discussions were open, free and enjoyable.