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20th Anniversary Logo Institute for Intellectual Property & Information Law

 

FALL LECTURE

SPONSORED BY

Sarah Burstein

Sarah Burstein

Professor of Law
University of Oklahoma College of Law


Click here for Professor Burstein's faculty listing

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Toward a Normative Theory of Design Patents

Click here for the Fall Lecture Invitation

Thursday, November 7, 2019

5:30 P.M. RECEPTION
6:15 P.M. LECTURE

VENUE:

The Houston Club
910 LOUISIANA - HOUSTON

To RSVP or for further information, contact
ipil@uh.edu or 713.743.2180
One Hour of CLE Credit

Sarah Burstein is a Professor of Law at the University of Oklahoma College of Law and an internationally-recognized expert in design patents. She has participated, by invitation, in design law conferences at the University of Oxford, Stanford Law School, the Max Planck Institute for Intellectual Property and Competition Law, ETH Zürich, and Waseda University in Tokyo. Professor Burstein is a past chair of the AALS Section on Art Law and of the ABA Design Committee.

Prior to joining the faculty at OU, Professor Burstein served as a law clerk to the Honorable Robert W. Pratt in the United States District Court for the Southern District of Iowa. She also worked as an intellectual property litigation associate in the Chicago office of Kirkland & Ellis LLP. Professor Burstein has a law degree from the University of Chicago and a B.A. in Art & Design from Iowa State University.

Selected Publications Include: Is Design Patent Examination Too Lax?, 33 Berkeley Tech. L. J. 607 (2019); The “Article of Manufacture” Today, 31 Harv J.L. & Tech. 781 (2018); The “Article of Manufacture” in 1887, 32 Berkeley Tech. L. J. 1 (2017); Costly Designs, 77 Ohio St. L. J. 107 (2016); The Patented Design, 83 Tenn. L. Rev. 161 (2015).

Toward a Normative Theory of Design Patents

The United States has granted patents for ornamental designs since 1842 but there are still few explanations for—let alone any clear consensus about—why, exactly, the system exists and what its goals should be. Now that high-profile cases like Apple v. Samsung have put the U.S. design patent system back in the spotlight and put millions of dollars on the line, it is more important than ever to figure out what we want this system to do, if anything. Should the goal be to deter any and all copying in the design space? To encourage the subjective expression of designers? To incentivize any and all types of design? Do we even need design patents at all?

This talk will provide a brief history of the U.S. design patent system and examine some of the various normative justifications that have been suggested in recent years. It will then present a new working theory for how we might justify the design patent system and explore some of the implications of that theory.

PRIOR LECTURERS

  2018 TIMOTHY R. HOLBROOK, Vice Provost for Faculty Affairs, Emory University; Asa Griggs Candler Professor of Law, Emory University School of Law
3D Printing, Digital Patent Infringement, and Its Implications2018 TIMOTHY R. HOLBROOK, Vice Provost for Faculty Affairs, Emory University; Asa Griggs Candler Professor of Law, Emory University School of Law
3D Printing, Digital Patent Infringement, and Its Implications

:      2017 JOHN R. THOMAS, Professor of Law, Georgetown University Law Center
The End of Patent Medicines? Exploring the Rise of Regulatory Exclusivities
2017 JOHN R. THOMAS, Professor of Law, Georgetown University Law Center
The End of Patent Medicines? Exploring the Rise of Regulatory Exclusivities

Daniel Chow2016 DANIEL C.K. CHOW, Frank E. and Virginia H. Bazler Chair in Business Law; The Ohio State University - Moritz College of Law
Trademark Squatting in China

RUTH OKEDIJI2015 RUTH OKEDIJI, William L. Prosser Professor of Law; University of Minnesota Law School
Inventing Intellectual Property: Source Disclosure for Genetic Patent Rights?

Dennis D. Crouch2014 DENNIS D. CROUCH, Associate Professor of Law, Patently-O Blog founder and editor (http://patentlyo.com); University of Missouri School of Law
Clarifying Patent Scope

Elizabeth A. Rowe2013 ELIZABETH A. ROWE, Research Foundation Professor of Law; Director, Program in Intellectual Property Law; Feldman Gale Term Professor in Intellectual Property Law; Levin College of Law, University of Florida
Intellectual Property and Information Control

The Honorable Jimmie V. Reyna2012 THE HONORABLE JIMMIE V. REYNA, Circuit Judge, United States Court of Appeals for the Federal Circuit
The U.S. Court of Appeals for the Federal Circuit: Immediate and Future Challenges

Robert Brauneis 2011 ROBERT BRAUNEIS, Professor of Law; Co-Director of the Intellectual Property Law Program; Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies; Member, Managing Board, Munich Intellectual Property Law Center, George Washington University Law School
Trademark Infringement, Dilution, and the Decline in Sharing of Famous Brand Names

Jane Winn 2010 JANE K. WINN, Charles I. Stone Professor and Director, Shidler Center for Law Commerce & Technology, University of Washington School of Law
Information Security as a Governance Challenge

Gregory N. Mandel2009 GREGORY N. MANDEL, Professor of Law, Temple University Beasley School of Law
Patently Nonobvious: The Impact of Hindsight Bias on Patent Decisions

Bagley2008 MARGO A. BAGLEY, Professor of Law at the University of Virginia School of Law
Illegal, Immoral, Unethical… Patentable? Issues in the Early Lives of Inventions

Clarisa Long2007 CLARISA LONG, Max Mendel Shaye Professor of Intellectual Property Law, Columbia University School of Law
The Political Economy of Intellectual Property Law

John Duffy2006 JOHN F. DUFFY, George Washington University Law School, Washington, D.C.
The Invention of Invention: A History of Nonobviousness

Dan Burk2005 DAN L. BURK, University of Minnesota Law School, Minneapolis
The Problem of Process in Biotechnology

David Franklyn2004 DAVID J. FRANKLYN, University of San Francisco School of Law
The Anti-Free Rider Principle in American Trademark Law

2003 WILLIAM F. LEE, Hale & Dorr LLP, Boston
Attorney-Client Privilege and Willful Infringement

2002 HON. PAUL MICHEL, U.S. Court of Appeals for the Federal Circuit, Washington, D.C.
Predicting the Scope of Patent Protection: Construing Literal Claim Scope and Determining Available Equivalents

2001 YSOLDE GENDREAU, Université de Montreal, Quebec
The Exportation of Copyright Models: The Retransmission Right and the Internet

2000 JERRE B. SWANN, Partner, Kilpatrick Stockton LLP, Atlanta
Trademark Dilution for the Year 2000

1999 JOSEPH STRAUS, Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich
Multinational Patent Enforcement: Problems and Solutions

1998 JOHN R. THOMAS, George Washington University Law School, Washington, D.C.
Transnational Patent Litigation

1997 HON. NANCY LINCK, Solicitor, U.S. Patent and Trademark Office, Washington, D.C.
Patent Prosecution for the New Millennium

1996 CHIEF CIRCUIT JUDGE GLENN ARCHER, CIRCUIT JUDGE PAULINE NEWMAN, AND SENIOR CIRCUIT JUDGE EDWARD SMITH, U.S. Court of Appeals for the Federal Circuit, Washington, D.C.
Perspectives on Patent Law from Three Federal Circuit Judges

1995 DONALD S. CHISUM, Author, CHISUM ON PATENTS
The Allocation of Decisional Responsibility Between Judge and Jury in Patent Trials

1994 JOHN PEGRAM, Davis, Hoxie, Faithfull & Hapgood LLP
Complexity and Cost in Patent Litigation