IP News — Fall 2016
Judge Dyk defends Federal Circuit at Supreme Court IP Review
The seventh annual Supreme Court IP Review (SCIPR) at Chicago-Kent convened leading law professors and lawyers, including counsel for the parties and amici in the last year's IP cases before the Supreme Court. More than 125 people attended the conference.
The Honorable Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit served as the 2016 SCIPR Speaker. To a packed audience, Judge Dyk delivered his address on "Some Thoughts on the Relationship Between the Supreme Court and the Federal Circuit," which will be published by the Chicago-Kent Journal of Intellectual Property.
In his address, Judge Dyk emphasized that Congress created the Federal Circuit, a specialized court, in an attempt to create uniformity for patent law. That original mandate sometimes may run in tension with the Supreme Court's preference for flexible standards and rejection of "rigid" rules adopted by the Federal Circuit. Judge Dyk noted, however, that the Federal Circuit's reversal rate at the Supreme Court was not higher than the reversal rate of other circuits. Judge Dyk also strongly disagreed with the proposal Judge Diane Wood made at Chicago-Kent in 2013 to remove the Federal Circuit's exclusive jurisdiction over patent appeals. The resulting uncertainty would wreak havoc on practitioners and district court judges, in Judge Dyk's view.
Another highlight of SCIPR was a special retrospective on the IP jurisprudence of Justice Antonin Scalia. Professor John Duffy of the University of Virginia School of Law, a former law clerk to Justice Scalia, analyzed the justice's skepticism of judges attempting to decide scientific questions. Professor Duffy explained how Justice Scalia emphasized the importance of judging and of judicial philosophy free from specialized, technocratic influences. Professor Graeme Dinwoodie of Chicago-Kent argued that Justice Scalia's two major trademark opinions, Wal-Mart Stores and Dastar Corp., demonstrated Justice Scalia's rejection of attempts to expand trademark law at the expense of other IP fields. In Professor Dinwoodie's view, both cases have already had significant effects on limiting the scope of actions under the Lanham Act.
Professor Ed Lee of Chicago-Kent presented a session on analytics of the Supreme Court's Term to provide a quantitative view of the Court. He showed the significant rise of IP cases before the Court this decade—the most ever in modern times. Professor Lee argued that last Term's high unanimity rate in IP cases does lend some support for the media's portrayal that the eight-justice Court is taking more IP cases this year to avoid the possibility of 4-4 splits, given the vacancy on the Court. To court observers, IP cases are seen as less controversial.
In addition to counsel representing the parties and amici in the cases, the conference speakers also included leading academics: Matthew Sag of Loyola University Chicago School of Law, Jason Rantanen of University of Iowa College of Law, Greg Reilly of Chicago-Kent, and Irina Manta of Maurice A. Deane School of Law at Hofstra University.
Archived videos of SCIPR will be available soon at www.kentlaw.iit.edu/scipr.
Chicago-Kent welcomes new IP faculty
This fall, Chicago-Kent welcomed Graeme Dinwoodie and Greg Reilly to the IP faculty. "I am delighted to be participating again in the dynamic intellectual community at Chicago-Kent. A new group of IP scholars has emerged at here, making my future role even more exciting," remarked Professor Dinwoodie, whose leadership as director of Chicago-Kent's IP Program from 2001 to 2009 helped to solidify its international reputation.
Professor Dinwoodie returns to Chicago-Kent in his new role as a University Professor, which is reserved for "highly distinguished faculty who may be appointed by the President [of Illinois Institute of Technology] in recognition of their national reputations." Professor Dinwoodie is considered a leading international authority in trademark law, design law and international intellectual property, and is regularly invited to speak at institutions around the world. He will remain the (chaired) Professor of Intellectual Property and Information Technology Law at the University of Oxford, the Director of the Oxford Intellectual Property Research Centre, and a Professorial Fellow of St. Peter's College.
Professor Greg Reilly joins Chicago-Kent from California Western School of Law. A magna cum laude graduate of Harvard Law School and a former law clerk to Judge Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit, Professor Reilly has also taught at the University of Chicago Law School as a Bigelow Fellow. He practiced in IP litigation for five years before entering academia. Professor Reilly was a visiting professor at Chicago-Kent in 2015. In his latest article, Decoupling Patent Law, forthcoming in the Boston University Law Review, Professor Reilly argues that "optimal implementation of patent law may, to some extent, require different legal rules [in the Patent Office versus courts] that properly account for the different functions, timing, structure, procedures, and decision makers in each context."
"I'm really excited to carry on Chicago-Kent's tradition of excellence in IP scholarship as well as of preparing students for the real world of IP practice," said Professor Reilly. "I also look forward to being part of the vibrant Chicago IP community."
Center for Empirical Studies of Intellectual Property hires Empirical IP Fellow
Dr. Andrew Moshirnia joins Chicago-Kent as our Empirical IP Fellow. In this role, he will help organize research and events for Chicago-Kent's Center for Empirical Studies of Intellectual Property (CESIP), such as the workshops CESIP has co-hosted in recent years with the USPTO and the Copyright Office. This past year, CESIP awarded grants to several researchers whose projects were related to the copyright policy areas (DMCA safe harbors, DMCA anti-circumvention, mass digitization, and moral rights) identified by Register of Copyrights Maria Pallante for the Copyright Office's review.
Moshirnia is a magna cum laude graduate of Harvard Law School, where he, as a staff writer for the Berkman Center's Digital Media Law Project, analyzed copyright infringement actions and takedown notices under the DMCA. He clerked in Chicago for the Honorable Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit and taught telecommunications law at DePaul University College of Law as an adjunct professor.
Moshirnia has a Ph.D. in educational technology, with a concentration in statistics, from the University of Kansas. He worked for several years at firms in Los Angeles and Silicon Valley. He has published several articles in law reviews and education technology journals, including a co-authored behavioral economics study of whether legal argument matters in decision making.
Aaron Perzanowski discusses The End of Ownership at next BookIT talk
The BookIT series provides a national forum for authors to discuss their recently published books, especially related to intellectual property, business, privacy, technology, the internet and empirical analysis. The series is co-sponsored by Chicago-Kent's Intellectual Property Program and Center for Empirical Studies of Intellectual Property.
In September, Professor William Birdthistle of Chicago-Kent and Professor Joshua Sarnoff of DePaul University College of Law delivered talks on their books, Empire of the Fund and Research Handbook on Intellectual Property and Climate Change, respectively.
On October 19, Professor Aaron Perzanowski of Case Western Reserve University School of Law will speak on his book The End of Ownership: Personal Property in the Digital Economy, co-authored with Jason Schultz of New York University School of Law. The book discusses the loss of property ownership of digital goods due to the licensing of such goods and the tradeoffs it poses for consumers.
In the spring semester, BookIT will feature talks by Chris Jay Hoofnagle of Berkeley Law School, Irene Calboli of Texas A&M University School of Law, and Jennifer Granick of Stanford Law School.