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
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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