IP Scholars conference, first plenary session

I’m at the IP Scholars Conference, cohosted by the Berkeley Center for Law & Technology and the Stanford Program in Law, Science & Technology, co-sponsored with DePaul University College of Law and the Cardozo School of Law.

I’m not going to cover patent presentations, because it’s just not my field, but the presentations are great and many of these papers are also available at the conference website. I’m also going to try to avoid summarizing presentations which closely track available papers.

Barton Beebe presented early results of his empirical study of fair use cases after 1978. His preliminary conclusions are available in his paper. He said in his talk that, while transformativeness is often key, commerciality seems to be less important in the first factor; he thinks judges are tired of it since everything’s commercial nowadays. In response to my question, he said he didn’t have a time trend analysis, but that would be useful to do. Another interesting result: though there’s no effect of ideology on outcome, cases decided by female judges are substantially less likely to result in fair use findings than cases decided by male judges. Again, he hasn’t yet analyzed whether that’s a result in changes in the composition of the bench over time.

Craig Nard presented work advocating against exclusive patent jurisdiction for the Federal Circuit.

I hope my presentation went well. You can find the basic argument here. Mark Lemley challenged me on exceptions for parody and comparative advertising: even if they increase internal search costs, there can be good reasons for allowing them, just as their procompetitive effects dominate any increase in external search costs. I agree, but that still has implications for how we understand and interpret the exceptions – and also increases the underinclusiveness of prohibiting other kinds of commercial dilution, which has implications for the First Amendment analysis of dilution.