Thursday, August 08, 2013

IPSC 2013, Cardozo, First Plenary Session

IPSC at 13

Conference website.

(standard disclaimers: this is my selective summary; as is made clear below, I couldn't possibly attend all the presentations I wanted to, so I picked on a sometimes arbitrary basis)

Roberta Kwall

IPSC began with 13 people!  (Now it’s 150 papers + other attendees.)  Discussed strategies for professors in a changing legal environment, including teaching more skills and teaching a greater variety of courses to make yourself more valuable.  Have students write briefs instead of papers, etc.  Reach out to local IP lawyers to become part of the community.  Be wary of being asked to do things whose success is largely out of your control (e.g., recruiting students, who will often be making decisions based largely on other factors like money).

Mark Lemley

IPSC started small, and limited numbers for a while. This allowed really deep/small discussions, but lost inclusiveness and a real flavor of what’s going on/ability to sample and learn from many different people.  Abandoned that and went to “the more the merrier.”  Now it’s intellectual speed dating.  Also experimented with papers—only tenure track?  Limiting the scope excludes an important chunk of scholarly universe.  This conference has gone to inclusiveness, which has costs.  But it’s also spun off imitators and differentiators which is healthy—you can talk to everyone at IPSC; you can go to WIPIP for more time to present; Patcon for just patents; privacy and internet law have their own conferences too. This gives us as a community the opportunity to experiment serving different kinds of needs.

IPSC and IP scholarship in general was heavily copyright-centric when it started.  Around 2000, scholarship started to head towards patents—practical importance plus recognition of IP as an independent discipline.  Copyright scholars 20 years ago often came out of libraries or con law and weren’t hired for IP for its own sake.  Because we hadn’t had a lot of patent academics for a while, there was a lot of low-hanging fruit both empirical and theoretical.  Clinics have also grown during this period.  Last 6-8 years, real growth in TM scholarship, again writing about stuff people hadn’t really theorized. Now, move towards post-IP scholarship: theorizing what IP’s place in the world is and what might be alternatives to it.

Are we going to see continued growth in the next 13 years?  Not on the same scale.  IP as a practice area is booming.  Will that trend be sustainable?  Is there an IP bubble that will subside (though not disappear)?  Law schools tend to lag, not lead, the bar.  As long as practice is growing, we can build the legal scholarship up even in a challenging market.

Justin Hughes

Don’t use Powerpoint, or at least read Edward Tufte’s The Cognitive Style of Powerpoint. 

Things he’s noticed: people from other nonlegal disciplines wanting to study/participate in IP.  Advances in empirical and historical work, but not nearly as much in comparative work.  Relevance: the big challenge.  Judge Jacobs, 2d Circuit, says he doesn’t read law reviews; neither does the executive branch. Law professors don’t think enough about relevance.  What we think of as “influential” often doesn’t seem influential to Hughes.  Problem throughout the legal academy, but perhaps specifically with patents—hypothesis: sixty years ago, patent scholarship became anti-patent, leading to a rupture between patent academics and the gov’t apparatus.

Usefulness to litigation shouldn’t be the only measure of scholarship; we shouldn’t expect history or philosophy to be cited by courts.  But it’s worth thinking about.  We should also judge the relevance of our community on the things we do besides articles: amicus briefs, Best Practices in Fair Use (identifies this as having genuine impact); working in government like Hughes is another way to have an effect.

One reason so much of our scholarship doesn’t have an impact is that our scholarship is polarized and partisan, often unrealistic, and is perceived that way.  Jessica Litman has made this point.  When Hughes went into the Clinton administration, he was assigned to figure out database protection.  Laura Tyson submitted a report on behalf of the database industry; it was crap, nothing but advocacy.  This was saddening.  But academics also had a lot of stuff to which he had the same reaction: advocacy thinly veiled as scholarly writing.  That’s one reason we don’t have as much influence as we could: we seem partisan and single-minded.

Risks of repetition: not clear there’s awareness of older scholarship, which is a real quality issue; partly a phenomenon of the size of our community, making us read more & more.

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