Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Overview and Introduction > Introduction to the Course
- Welcome to the brave new world of intellectual property law.
- My name is Polk Wagner, and I’m a professor here at the University of Pennsylvania Law School.
- I invite you to join me to explore the legal doctrines at the core of the innovation economy.
- Intellectual Property Law and Policy will be your comprehensive guide to the law, policy, and debates in modern intellectual property law.
- You’ll gain a working knowledge of the major forms of intellectual property- patents, copyrights, and trademarks.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Overview and Introduction > Welcome to the Course (1.1)
- So hello and welcome to Introduction to Intellectual Property Law and Policy.
- It means exploring some of that technology, and it means exploring a lot of the policies and the debates surrounding intellectual property law, but through the lens of the modern economy and what’s going on today.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Overview and Introduction > Course Goals
- It’s primarily an introduction and an entry into the world of intellectual property law, and a compact and unbiased look at the modern law and the policies underlying the law.
- We’re going to look at the debates as we go throughout the course that you probably have read in media, concerning intellectual property law and policy.
- The coverage of the course we’re going to mix between doing the subject matters, the various flavors of intellectual property law and the components of them, the rules, the procedures, the cases, the policies.
- We’re going to look a little bit at a couple other areas of intellectual property, that of course being trade secrets and rights of publicity, although we’re not going to cover those in detail in the course.
- Then we’re going to move on in the next lecture to intellectual property law theory, and try and discuss and figure out and explore what the problem is that the laws of intellectual property are trying to solve- why do we have these laws in our modern economy? And then, how they do it.
- Because as with all intellectual property law, patent law is really about the trade offs between the benefits and the costs, and we’re going to look at that in some detail through the lens of the subject matter requirement, which is one area that’s been very much in the news lately.
- Can you patent DNA strands or not? That’s an issue that the Supreme Court has taken up a couple of times in recent years, and is something that really exposes the policies underlying patent law, and we’re going to take a look at that.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Why Study IP? > IP’s Critical Role in the Economy
- The easy answer, and probably the most important answer, is that intellectual property rights are critical to our national industrial policy.
- We have really moved from the industrial age back in the late 1800s, early 1900s, where our economy and success in economic life was based on manufacturing, large plants- think of the auto plants, for example, from the early 20th century, throughout the mid-20th century, to the information age, right? By and large, what we are doing now in the United States is doing things that manipulate information.
- Because instead of using big plants and manufacturing facilities and sort of heavy iron to construct things in the US, we use our minds.
- All of those things are intellectual property law-based properties and values.
- Biology and genetics is a new area of invention, of innovation in the economy, and the patent law is right there, right in the middle of that debate.
- Can you patent things related to people’s genetic material? What are the limits on what you can enforce in terms of biological materials? And how should that work in the modern economy? Computer software this is an area that has undergone unbelievable amounts of innovation over the last 10 years.
- The patent system, as we’ll find out when we go through our module on patent law, really was designed and appears to be thought of in terms of more tangible, more concrete, physical inventions.
- Now, derivatives tend to be patented and are now proprietary, owned properties of particular innovators.
- Old players also are investing in innovation, in terms of thinking about the way that business and finance theories might or might not be innovative and therefore patentable.
- A lot of TV was free and interspersed with advertisements, which paid for the content.
- Instead of going to a movie theater and paying for the content directly, you were paying for it indirectly with your time and attention in advertising.
- The advent of TiVo in the late 1990s, and continuing to the DVRs of today, mean that people now have a lot more ability to skip ads altogether, or at minimum, change the time and the place at which they’re watching television or any entertainment products, which changes the business models.
- How are the producers of such works going to respond? And now you’re getting to the point where not only do the producers of the works have to respond to new business models and new technologies, but the very identity of the producers themselves are changing, with the advent of services like YouTube, where anybody can now upload video and become essentially their own creator of media products.
- So at the center of this, of course, is copyright, right? What is the relationship now between YouTube and the copyright law? If I edit a version of a TV show that I like and upload it to YouTube, have I committed copyright infringement? And if so, what should the remedy? Should I have committed copyright infringement? Should the law speak to that? These are the things that are putting a lot of pressure on the copyright law going forward.
- Music is seeing a revolution, of course, over the last two decades- again, from big bands that you would pay tickets to go see, to physical media like [? CDs ?] that you would purchase, and to digital distribution and even wholesale ripping off of music in the Napster era, and now to sort of what we might call the iTunes or even Pandora and Rhapsody era, where people are consuming music in very different ways.
- That’s one of the reasons that intellectual property law is so interesting right now is that there’s so much pressure and so much change going on as a result of technological change, and some of these new business models that are emerging as a result.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Why Study IP? > Expansion in IP Activity
- There are more IP rights out there than ever before, no matter how you measure it – terms of patents applied for, copyrights obtained, amount of litigation.
- There’s a corresponding increase in copyright and trademark as well, but I wanted to highlight the patent context, because that is one of the most striking.
- If you look at the last two decades of patenting activity, the applications filed have risen almost triple.
- We’ve almost tripled in terms of yearly filings in patent applications.
- We’ve also had a lot more patents granted, as you might imagine.
- This has gone from around 200,000 or so year of patent applications applied for, patent applications in 1994, to almost 650,000 patent applications a year in 2014.
- You can see from the graph that the patent office is granting more patents than ever before, but you will notice that they’re not keeping up.
- So one of the major public policy questions that is facing us right now is the fact that there’s a huge backlog of patents, now, at the patent office, which causes problems.
- It’s a, in sense, an embarrassment to the patent office.
- People are applying for patents and have to wait for sometimes three, four, five, even seven or eight years to get their patent approved or even denied- don’t like it, hurts everybody.
- They write letters to their Congress- people asking for them to do something about the patent office.
- Then so the patent office is sort of getting hit from all sides.
- So instead of just look at the amount of applications applied for, you can actually divide that by the amount of research and development we’re doing in the US as a proportion of the patents that are applied for.
- What you’re seeing is an almost doubling of what we call patent intensity.
- What this means is that, now, for every research and development dollar we’re getting more than double the number of patents that we used to 20 years ago.
- It’s a bigger change in some ways than just the raw increase in patenting behavior.
- Or, and I think it’s more likely, that what’s happening is people think about patents much more as a much more critical component of their research and development effort than they ever did.
- Let’s go ahead and get a patent to protect ourselves.
- Patents are right at the beginning of the research and development effort, and people are thinking about patents the whole way through.
- Instead of getting one patent to cover a particular product, they’re increasingly getting two, sometimes three, four, even more patents to cover themselves, because patents in the marketplace have a lot more power when they’re combined together.
- The other thing that makes it really interesting to be in IP right now is that the Supreme Court, which for years really didn’t take a lot of intellectual property law cases, is now over the last three years taken an enormous number of cases, mostly in the patent area, but also in trademark and copyright as well.
- Most of them end up in the patent area, but also in trademark and copyright.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property > Why Study IP? > The Limits of our Knowledge
- One of the other fascinating areas about intellectual property law in the modern economy is that although you might think that we would, we actually have almost no knowledge about the benefits and costs of this major system that’s at the core of our innovation policy, our industrial policy here in the US. We really don’t know very much about the true cost of the system and the true benefits.
- We don’t know what our system would be like without these types of laws.
- Most developed countries have laws are almost the same as ours.
- So it’s really difficult to get a good grasp of what it is that these laws are doing, how much they are benefiting versus incurring costs on the overall economy.
- Because that means a lot of the policy issues are critically important and right at the center of the way that we think about intellectual property law.
- We have a court system that is dealing with more and more litigation every year surrounding intellectual property law.
- A lot of people think that the costs have become too high, and that we have sort of, in a sense, turned the corner on intellectual property law.
- Think about the policies underlying this, and how it either strengthens or weakens intellectual property law going forward.
- We know for sure recent increases in patent enforcement just over, again, this two-decade look, you’ve probably seen these types of stories in the media just in the last five years, a huge increase in the amount of enforcement activity surrounding patents.
- There’s backlogs throughout the country relating to patent cases, which are very costly and complex cases.
- Lawyers who do patent law, for example, are in very high demand.
- Highly skilled lawyers who can do both science and law are even in higher demand.
- They know now there’s an increasing risk that when you produce a new product, that you’re going to be potentially accused of patent infringement and have a lawsuit filed against you.
- So that’s an important aspect of planning and thinking about the way that you produce products now in the modern economy, and has really changed over the last two decades.
- Patent law in particular has passed other intellectual property law enforcement.
- It’s really the patent- the story about IP litigation over the last 10 years for sure has been about the patent law.
- Patent litigation intensity- again, if you measure it by dividing by research and development dollars, again, shows that we are not only seeing an increase in raw numbers, but an increase in the number of patent litigations per R&D dollar.
- Which means as we do more research, it’s generating more and more intellectual property law litigation, more disputes, as patents, and copyrights, and trademarks continue to move towards the center of the modern economy.
- The rules aren’t set in intellectual property law.
- There’s legislation pending in Congress about intellectual property law almost all the time.
- So the bottom line here is you should study intellectual property law because IP is increasingly the regulatory framework of the new economy.
- IP law is going to be the way that we regulate our economic activity going forward.
Week 1: Patents, Copyright & Trademarks: A Survey of Intellectual Property