1、Introduction to the United States Legal System and U.S. Intellectual Property Law,Dennis S. Karjala Jack E. Brown Professor of Law Sandra Day OConnor College of Law Arizona State University dennis.karjalaasu.edu,Course Information,Reading Assignments http:/homepages.law.asu.edu/dkarjala/SlovakiaClas
2、ses/IntroUSLegalSystem&IP.htm Course Materials http:/homepages.law.asu.edu/dkarjala/SlovakiaClasses/CourseMaterialsBratislavaF-08.html Course Outline (.doc) Available from Reading Assignments and Course Materials pages,Civil Law versus Common Law,See the Wikipedia entry for “property”: In Armory v.
3、Delamirie, a chimney sweeps boy found a jewel encrusted with precious stones. He took it to a goldsmith to have it valued. The goldsmiths apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. The boy said he would prefer the jewel b
4、ack, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentices attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper until the original owner is foun
5、d. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boys possessory interest was considered better, because it could be shown to be first in time. Physical possession is nine tenths
6、of the law, but not all.,Civil Law versus Common Law,Still from Wikipedia: This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. By contrast, the classic civil law
7、 approach to property, propounded by Friedrich Carl von Savigny, is that it is a right good against the world. Obligations, like contracts and torts are conceptualised as rights good between individuals.,Civil Law versus Common Law,Is there really such a difference between civil law and common law l
8、egal systems? How would a judge in a civil law country handle the problem of Armory v. Delamirie, assuming there is no statute governing “found property”? How would people react if a court held that the apprentice could keep the jewels? How does anyone prove “ownership” of personal property? If you
9、take your coat to be cleaned and lose the receipt, should the cleaner be able to keep your coat? The real legal problem in this case is not who owns the coat almost a metaphysical question but who, as between the apprentice and the boy, gets to keep the jewels,Overall Structure of U.S. Legal System
10、UNITED STATES CONSTITUTION,Federal statutes adopted by Congress (and signed by the President) and international treaties approved by the President and confirmed by the Senate Regulations of federal administrative agencies (Securities & Exchange Commission, Food & Drug Adminstration, etc.),State cons
11、titutions Statutes adopted by state legislature and regulations adopted by state administrative agencies Municipal ordinances adopted by cities and towns (zoning, traffic rules, etc.),Two Court Systems,Federal courts interpret and apply federal statutes and regulations and consider the constitutiona
12、lity of both state and federal legislation and regulations Federal courts can also apply state law in disputes involving parties from different states,State courts interpret and apply the laws of their state only their rulings have no legal application outside the boundaries of their state State cou
13、rts can also interpret and apply most federal statutes and regulations when they otherwise have jurisdiction (patent and copyright are a major exception) State courts can also consider the constitutionality of both state and federal legislation,The Federal Court System,Cases in federal courts origin
14、ate in federal district courts There is at least one federal district court in every state, and some large states have three or four Most cases are litigated before a single judge, possibly with a jury making decisions on factual questions Appeals from district court decisions go to one of twelve fe
15、deral circuit courts of appeal Appeals go before three-judge panels of the courts of appeal Important cases may be reargued “en banc,” where all the members of the court of appeal participate in the decision Appeals of patent cases go exclusively to a specialized patent court, called the “Court of A
16、ppeals for the Federal Circuit” The ultimate federal judicial authority in the U.S. is the United States Supreme Court (Supreme Court of the United States, or “SCOTUS” for short),The Supreme Court (SCOTUS),Appeal to SCOTUS is available only by a so-called “writ of certiorari,” a process by which the
17、 appealing party gives reasons why SCOTUS should decide the case (such as conflict with law of other circuits or an important principle of constitutional law) SCOTUS hears appeals from the federal circuit courts of appeal or from final decisions of state courts if a matter of constitutional law is i
18、nvolved SCOTUS hears only about 250 cases each year A majority of the participating Justices (usually five out of nine) is necessary to win the case,Federal Supremacy,Any state law that conflicts with a validly adopted federal law, an international treaty, or the Constitution is invalid Article VI o
19、f the Constitution says This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby,
20、anything in the Constitution or laws of any State to the contrary notwithstanding Under Article I, Section 8, of the Constitution, Congress has the power to do such things as collect taxes, regulate commerce among the states and foreign countries, coin money, establish federal courts, declare war, a
21、nd to raise and support armies and navies,Law Practice in the U.S.,Each state has its own “bar,” which consists of those people who have passed the exam (called the “bar exam”) to become lawyers Some states have reciprocity with other states, so that if you pass one states bar exam, you can become a
22、 member of the bar (and therefore practice law) in the other state Many states do not have any reciprocity, however, such as California and Arizona Law practice is largely divided up into Litigation Business counseling and transactions Many lawyers are specialists in fields like taxation, securities
23、 regulation and corporate law, intellectual property law, insurance law, and so forth,Why Property Rights?,Tangible property is a zero-sum game Use by one person means that no one else can use it at the same time Much personal property is “consumable,” in that, once consumed, it is gone forever Trag
24、edy of the commons Without property rights, there is less incentive to put property to its most valued uses The standard example is a grazing field if anyone can graze animals there anytime, it will be “overgrazed” Future uses are discounted in favor of present uses Higher valuing users cannot negot
25、iate for exclusive use,Why Rights in Information?,Information is NOT a zero-sum game If one person knows how to drive a car, he can still drive even if others learn to do so (until it gets too crowded on the streets) Thomas Jefferson said, of ideas: “No one possess the less because everyone possesse
26、s the whole of it. He who receives an idea from me receives it without lessening me, as he who lights his candle at mine receives light without darkening me.” Once a song or a movie has been created, anyone can sing it or watch it without taking away from the ability of others to do the same,Economi
27、c Efficiency,Once information is created, it is economically inefficient to give property rights in it (in contrast to the case of tangible property) In efficient, competitive markets, the price of goods necessarily falls to the marginal cost of producing them The marginal cost of reproducing inform
28、ation is zero, or at least very low compared to the cost of creating it in the first place Recognizing property rights in information that is, the right to exclude others from using the information allows the IPR (intellectual property right) holder to charge a price exceeding marginal cost This “mo
29、nopoly” pricing results in a “deadweight loss” associated with any monopoly,Why Do We Recognize IPRs?,Natural rights? John Locke argued that property rights arise “naturally” from the act of creation This makes good sense for tangible property, like tables (which is what Locke was thinking about) Bu
30、t does it work for intangible property, like ideas and information? Reward for creativity fairness Should creators be allowed to control what they create? Why, and if so, to what extent? Should creators be able to control every use? Should IPRs extend in perpetuity, like rights in tangible property?
31、 The reward-for-creativity argument does not explain how to determine the appropriate limits on IPRs,Creation Incentives,Most IP has the character that it is costly to create initially but easy and often inexpensive to copy Would no one write books, produce films, or invent new machines without IPR
32、protection? SCOTUS Justice Stephen Breyer argued in 1970 (as professor at Harvard) that most books would likely get written even without copyright rights, with employers, patrons and government filling most of the gap. Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Pho
33、tocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970) Many inventions from ancient history (the wheel, use of fire, agricultural methods and crops) came without the incentive of patent rights,Creation Incentives,A basic assumption of IPR systems is that we will get less of socially desirable
34、information-based goods without the incentive that arises from affording exclusive rights Copying was always cheaper than creating the original In the digital age, copying and even redistributing is essentially without cost at all So, we recognize IPRs in order to provide an incentive to create soci
35、ally desirable works We want to limit the strength and length of these rights to what is necessary to supply the incentive If IPRs become too strong they can act as a disincentive to others who wish to build on existing works Too strong IPRs can also result in an over-production of “creativity” good
36、s over other goods that may be even more desirable,Value of the Public Domain,IPRs thus give an incentive to create desirable works Progress in both arts and technology, however, moves incrementally, with current creators building on what has been passed down to them from their predecessors Inventio
37、ns can be improved (think how automobiles have improved over the past 100 years) Works of literature can spark new creativity (think “Romeo and Juliet” leading to “West Side Story”) Imagine what the world would be like if IPRs were perpetual Somebody would be collecting royalties whenever anyone use
38、d a wheel James Joyce would have had to negotiate with the heirs of Homer in order to write “Ulysses” Most of Shakespeares plays likely would never have been written (he stole from many sources),Drawing the Balance,In creating and enforcing IPRs, then, we must carefully balance the need for creation
39、 incentives versus the need for later creators to build on past creations We must resist the temptation to analogize information to tangible property Information is not a zero-sum game Protection of information is economically inefficient, but for the need for creation incentives Notions of “fairnes
40、s” or “natural rights,” while highly emotive, should not play much, if any, role in analyzing either the existence or the scope of IPRs,Intellectual Property Law,Patent Protects “nonobvious” technological advances Copyright Protects the “expression” contained in artistic, literary, and musical works
41、 Trademark Protects investment in names or symbols signifying the origin of goods or services Trade Secret Protects unpublished information valuable to a business Rights of Publicity Protects the right to use the names or images of famous people in commercial advertising,Patent Versus Copyright,Thes
42、e two venerable statutes seek to accomplish the same end: Protect the fruits of intellectual creativity for the purpose of encouraging the production of intellectual works They go about their tasks, however, in very different ways,Patent,Patents issue only upon formal application and after examinati
43、on by a skilled examiner for “novelty” and “nonobviousness” Patent requires a complete specification of the invention The scope of patent protection is defined and narrowly limited by the claims The term of patent protection is 20 years (from filing),Copyright,Copyright arises automatically upon fix
44、ation The scope of copyright protection is defined by the vague idea/expression dichotomy Copyright infringement is determined by the equally vague “substantial similarity” standard The term of copyright protection endures for 70 after the death of the author (or 95 years for so-called “works made f
45、or hire”) in other words, the term is practically perpetual,Why These Differences?,There MUST be something in the nature of “patent subject matter” that distinguishes it from “copyright subject matter” that justifies such radically different treatment Statements like “Patent protects technology” or
46、“Patent protects function” were enough to distinguish the art, music, and literature that were the traditional subject matter of copyright Even before computer programs, however, the old case of Baker v. Selden shows the importance of distinguishing between the two types of subject matter,Baker v. S
47、elden,This case involved the copyright in a book by Selden on bookkeeping Seldens book described a new system of double-entry bookkeeping that allowed presenting the results of any given time period on a single sheet (or two facing sheets) Selden included some sample forms in his book to show how to
48、 use his new system Baker wrote a book describing a similar system, and included in his book forms that were similar to those in Seldens book We can see the forms here,Baker v. Selden,What happened in this case? Selden wrote his book The book included an “introductory essay” explaining Seldens syste
49、m It appended some blank forms to illustrate how to use Seldens system Selden “took the requisite steps” to get a copyright (today he would not have to do anything, but he would have to register the copyright before he could bring suit against Baker) Baker published his book, and Selden sued Baker Bakers book did not copy Seldens explanatory language Bakers example forms used a “similar plan” and got to the same results but with a different arrangement of columns and headings Selden won in the district court and in the court of appeal,Baker v. Selden,
