Notice and Notice Failure in Intellectual Property Law
Boston University School of Law hosts distinguished scholars and practitioners to discuss challenges in IP law.
In their landmark book, Patent Failure, James Bessen and Michael Meurer demonstrated that “notice failure” lies at the heart of the current crisis in patent law. Without sufficient and timely notice of the existence and scope of patent entitlements, innovators face risk and uncertainty that can hobble investment, transactions, and economic growth. Notice issues, moreover, are not limited to patent law: problems with notice—from the opaque nature of complex statutes to the fuzzy boundaries of many intellectual property doctrines—can lead to public frustration, litigation, inefficiencies, and chilling effects.
On September 25–26, Boston University School of Law hosted a conference, Notice and Notice Failure in IP Law, in which leading scholars presented papers addressing notice issues in trademark, copyright, patent, right-of-publicity, and trade secret law. A distinguished group of commentators—including law professors, judges, litigators, and in-house lawyers from Viacom and Google—offered critique and commentary on the principal papers.
The program opened with Abraham and Lillian Benton Scholar and Professor of Law Michael Meurer’s paper, “Bargaining Failure and Failure to Bargain.” Meurer noted the difficulty of matching disputants in intellectual property law cases and explored ways in which IP law can be improved, both in procedure and in substance, to bring disputants together and facilitate bargaining rather than litigation. In response, Honorable William G. Young, of the US District Court for the District of Massachusetts, offered a perspective from the bench, in which he celebrated the use of litigation—especially jury trials—to resolve legal disputes
The conference moved on to consider notice issues across substantive areas of law and from domestic, international, and comparative perspectives. From trademark registration to copyright formalities, intermediary liability to patent trolls, scholars considered the role of notice through theoretical, historical, and doctrinal lenses. Some commentators offered theoretical critiques; others, including Michael Fricklas (‘84), executive vice president, general counsel, and secretary of Viacom, Inc.; Bruce Keller (’79), assistant US attorney for the District of New Jersey and former partner at Debevoise & Plimpton; and Fred von Lohmann and Suzanne Michel, Google’s copyright and patent counsel, respectively, offered views from the trenches of IP practice.
Honorable Patti B. Saris, chief judge of the US District Court for the District of Massachusetts, delivered the keynote address on the second day of the conference. Judge Saris described the challenge and the fascination of hearing patent law cases as a non-scientist, and explained the painstaking fact-finding that district court judges engage in during claim construction. She also discussed a number of recent developments in patent law and considered their implications for litigants and trial courts.
Proceedings from the conference, which brought together a distinguished group of academics, practitioners, and jurists to share their insights on a common theme, will be published in the Boston University Law Review.