Thursday, August 2, 2018

#IPSC18 Preview: Design, Trade Secrets, and Right of Publicity

To get ready for IP scholar speed dating at Berkeley next week, I've previewed the panels focused on patents and innovation, copyright, and trademarks. Today: design, right of publicity, and trade secrets (including some notes on other panels where you can also find papers on these topics).

  • Breakout 1 – IP Protection for Designs
    • Sarah Burstein – Design patent phrase "partial designs" needs clearer definition.
    • Mala Chatterjee – Conceptual separability test for copyright useful article doctrine should be whether article remains functionally identical when design element in question is removed.
    • Joshua Sarnoff – Design patents should be available only for product that is "useful in itself" (not products useful only in combination).
    • Daniel Yablon & Peter Menell – Historical lines between protection for functional and nonfunctional innovation should be restored.
    • For design patent damages, see Pam Samuelson & Mark Gergen in Breakout 3 – Infringement and Remedies, and for design patent practice, see Jeanne Curtis & Christopher Buccafusco in Breakout 5 – Patent Practitioners.
  • Breakout 2 – Right of Publicity
    • Jennifer Rothman – The right of publicity shifted in the late 1970s from a tort-based privacy model to an expanded IP-like right, and it should shift back.
    • Mark Lemley – Rothman is right that the broad right of publicity should be cut back to a manageable size, but understanding it has a specific form of IP rather than a privacy right is the better avenue.
    • Dustin Marlan – The "persona" in right-of-publicity law should be understood as an individual's social fa├žade or front that reflects the role in life the individual is playing.
    • Joel Wacks – Incoherence in publicity rights can be restored by extending copyright's protections for fictional characters to nonfictional identities that have taken on the characteristics of works of authorship.
    • Those interested in right of publicity might also enjoy Uri Hacohen & Peter Menell's paper in Breakout 4 – Old and New Theories of IP.
  • Breakout 3 – Trade Secrets
    • Courtney Cox – Firms can legitimately protect trade secrets through misrepresentations such as posting fake versions of improperly revealed information to obscure which is authentic.
    • Sarah Cortes – Over 10M pages of darknet webpages are used to determine the extent of IP exploitation on dark markets, suggesting that existing legal remedies like the DTSA may need reconsideration.
    • Amit Elazari Bar On & Peter Menell – Digital whistleblower immunity modeled on the DTSA should prevent CFAA liability based on "unauthorized access."
    • Mark Schultz [canceled] – The author's Trade Secret Protection Index shows the relationship between the strength of a country's trade secret laws and patenting activity.
    • See also Jacob Sherkow's talk in Breakout 2 – Law, Norms, Forms, and Deepa Varadarajan & Joseph Fishman's paper in the Closing Plenary.

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