Patent Law

Harvard Law School, Fall 2017

William Fisher

Preliminary Syllabus

The rules governing patent law will be presented in a series of 11 lectures (marked in red), for which there are no reading assignments. The remaining 13 sessions of this course (marked in blue) will examine aspects of patent-law theory and policy. The reading assignments for those sessions, most of which consist of secondary materials, are indicated below. All are available online.

A map containing all of the lecture notes for the course and links to a variety of other materials is available at https://cyber.harvard.edu/people/tfisher/IP/IPMaps.htm.

The examination for the course will have two parts. A closed-book in-class test will assess students' knowledge of patent doctrine. A short essay, due on the last day of the exam period, will enable each student to explore one of the policy issues addressed in the course.

Lecture #1: The Subject Matter of Patents (part 1: General Principles and Living Things) (September 11)

Discussion: The Economics of Patents (part 1: Incentive Theory) (September 12 )

• Peter Menell, Intellectual Property: General Theories, pages 129-148

Lecture #2: The Subject Matter of Patents (part 2: Software, Business Methods, Legal Innovations) (September 18)

Discussion: The Nature and Determinants of Innovation (September 19)

• Chris Freeman and Luc Soete, The Economics of Industrial Innovation (2000), pp. 1-27

Lecture #3: The International Framework of Patent Law (September 25)

Discussion: The Future of International Patent Agreements (September 26)

• John Duffy, Harmony and Diversity in Patent Law, 17 Berkeley Tech. L.J. 685 (2002).
• Jerome Reichman and Rochelle Dreyfuss, Harmonization without Consensus, 57 Duke L.J. 85 (2007).

Lecture #4: Utility and Disclosure (October 2)

Lecture #5: Novelty (October 16)

Discussion: Disaggregation (October 17)

• Mark Lemley & Dan Burk, Policy Levers in Patent Law (2003)

Lecture #6: Nonobviousness (October 23)

Discussion: Traditional Knowledge (October 24)

• Justin Hughes, Traditional Knowledge, Cultural Expression, and the Siren's Call of Property (2013)

Lecture #7: Patent Entitlements (part 1: Infringement) (October 30)

Discussion: Parallel Importation (October 31)

• Impression Products v. Lexmark (May 2017)

Lecture #8: Patent Entitlements (part 2: Equivalents, Duration, Licenses and Assignments) (November 6)

Discussion: The Economics of Patents (part 2: The Implications of Behavioral Economics) (November 10)

• Jolls, Sunstein, and Thaler, A Behavioral Approach to Law and Economics, pp. 1471-1489
• Dennis Crouch, The Patent Lottery: Exploiting Behavioral Economics for the Common Good, 16 George Mason Law Review 141 (2008)

Lecture #9: Defenses (November 13)

Discussion: Patent Law and the Global Health Crisis (November 14 & 17)

• Fisher & Syed, Infection, Introduction, Chapters 2, 3, 5, 6

Lecture #10: Design Patents (November 20)

Discussion: Patent Litigation (November 21)

• Guest speaker: William Lee, Managing Partner, WilmerHale
• Daily and Kieff, Benefits of Patent Jury Trials for Commercializing Innovation, 21 George Mason Law Review 865 (2014)
• Samsung v. Apple (2016)

Lecture #11: Remedies (November 27)

Discussion: The Patent/Antitrust Boundary: Standard-Setting Organizations and Reverse-Payment Settlement Agreements (November 28)

• Jorge Contreras, Fixing FRAND: A Pseudo-Pool Approach to Standards-Based Patent Licensing, 79 Antitrust Law Journal 1 (2013)
• McGuire et al., Resolving Reverse-Payment Settlements with the Smoking Gun of Stock Price Movements, 81 Iowa Law Review 1581 (2016)

Lecture #12: Trade Secrets (December 4)

last revised: November 20, 2017