Planting seeds | Above the legislation

One of the great joys of my professional life has been my weekly experience teaching an IP elective course to (very) motivated and capable high schoolers. Back in 2016 – when classes could be maskless even if I was personal – I described teaching high schoolers as a “rewarding experience,” which led me to recommend readers at the time to seize every opportunity to teach that got in their way. I still believe that today’s IP attorneys play an important role in educating the public – and especially the next generation of Americans – at least on the basics of IP literacy.

In fact, I hope that some of the unfortunate disruptions to our educational system, from college to preschool, will at least create additional opportunities for IP literacy as part of a comprehensive curriculum, especially for high school and high school students. The pandemic has confirmed that “we live in a world where it is easier and more difficult than ever to bring disruptive products and services to market. The competition is worldwide and relentless. “I wrote these words in early 2018, but they are even truer today. (For a good summary of the new Biden administration’s IP compliance efforts, I recommend this piece by Bruce Berman.) Accordingly, it is more important than ever to nurture the IP literacy of today’s students before entering the Enter the world of work, especially since the pandemic, has changed so radically the workforce they will join.

Given how important IP literacy is to me, I’m still lucky enough to be able to do something about it, at least in the context of my own class. For this year, I’ve decided to mess things up a little, mostly by choosing patents as the main unit of the semester. In previous years, trademarks and copyrights were the first IP discussion points in the class, partly because it is much easier to get a student to think about the branding of the sneakers they are wearing than the chipset in their smartphone.

As a result, the interim project, which in many ways was the highlight of the course, previously had a trademark focus in the form of a series of domain name disputes that the students could lead in litigation. Since I would re-trigger published arbitration awards for domain names as our case studies, it was relatively easy to develop factual patterns that would be both interesting and workable to the students.

Since I need a change, I decided to use patents as the main topic for the fall semester. Since one of my motivations for the move was to challenge myself to keep things up to date with the presentation of the course, I understood that one of the biggest changes that would result from this would be the mid-term project. Again, this project really is the centerpiece of the class as it allows students to get a sense of the IP attorney’s role in resolving disputes and to examine how the law and factual interaction helps determine IP – Matters advance a process setting.

One of the most humbling things you learn as a teacher is that no matter how simple or digestible you think your presentation of the material is, you can always do better. This challenge doubles when you ask students to deal with something completely different than anything they have come across before. So, with regards to the intermediate project, I really looked for a case that presented a fact pattern with easily identifiable technology, ideally contained in a familiar consumer product. Equally important, I wanted a case that contained interesting – but manageable – questions about the key issues that were most frequently challenged in modern patent cases, namely jurisdiction, infringement, invalidity, and compensation.

Since I already have the practice of scanning new patent applications, I kept a close eye on cases last month that could provide a good basis for this year’s interim project. So I was delighted to see the recent lawsuit filed against Peloton by the creator of the spinning phenomenon, aptly named Madd Dogg. It was tailor-made to adapt to this year’s interim project.

Well-known consumer product? Check – especially due to Peloton’s gonzo performance in the pandemic in the closed gym. Venue problem? Check out – when Madd Dogg (wisely) decided to sue Peloton in the Eastern District of Texas instead of the SDNY or Delaware, Peloton’s more natural “home courts”. Relatively simple technology? Check – an exercise bike with screen and connectivity that allows easy customization of violations and validation issues for the class. Money at stake? Check this – both in terms of the damage caused by Peloton itself selling the motorcycles, as well as the potential convoy sales of Peloton subscriptions. In short, a lot of raw material to adapt to a viable competition project for the class.

Of course, I still don’t know whether this year’s project will be a success. Right now I’m focusing on dividing the class into work teams on two levels. First, half of the Peloton class and the other half will “represent” plaintiff Madd Dogg. Each legal team is then further divided into small groups of two, with each sub-group being tasked with dealing with one of the four issues (place of jurisdiction, infringement, validity, compensation). Once the groups are established, I will establish the factual patterns for each issue and meet with each of the litigation subsets to ensure that they construct their arguments and properly conduct relevant investigations. If all goes well – and the school stays open – we should be on the right track for our verbal arguments right after the winter break in early February.

I always hope that my students get a taste of the fun and intellectual stimulation that a career in IP law can have. I realize that perhaps the practical nature of the intermediate project is my best chance at planting this seed in them. For this reason, it is very important to me that, given the level of participants, the project mimics a real argument as closely as possible. And that’s why I think this time investment is so worthwhile. Because whenever we have the chance to plant seeds for the future, we should do it. 2020 called our commitment into question. But we have a responsibility to keep planting. And watering so that today’s seeds can flourish in tomorrow’s leaders.

Please send me comments or questions at gkroub@kskiplaw.com or via Twitter: @gkroub. Suggestions or thoughts on topics are very welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading patent consultancy to the investment community. Gaston’s practice focuses on intellectual property litigation and related advice, with an emphasis on patent issues. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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