Maybe it is not surprising, but the conference opened with three presentations that addressed questions about the future of legal academia and the marketplace for lawyers. Are there going to be the positions available for students who study IP law? What will the next generation of IP faculty members look like and what skills should they have? Why is so much of the scholarship that is produced destined to be ignored by everyone but our peers at other law schools?
IPSC has two types of presentations, short and long. The short presentations involve a scholar making a summary of the work-in-progress and then gaining some feedback from the others in the room. The long presentations involve two scholars: a commentator who is drawn from the more seasoned members of the IP scholars community and the author. The commentator presents the subject of the paper and coordinates the conversation about the paper that ensues. As the conference is for works-in-progress, it is hoped (by the conference organizers, I assume, as I am not involved at that level) that the feedback and comments will lead to better papers.
The first group of sessions I attended were short presentations, all involving patent law, particularly the theoretical basis of it. It was a stark transformation from the opening plenary that stressed the need to make IP scholarship more relevant outside of academia. Most of the papers, although of interest for IP insiders, will not achieve a readership among the bench and bar. Whether patent claims are based on tort or contract may help understand why the law works the way it does and it is certainly interesting to think about, it doesn’t help anyone deal with a particular case, nor is it likely to help a policy maker decide how the law should change to address the evolving world of invention.
The longer presentations this morning continue to demonstrate the problem of redirecting research efforts. Both papers were more practice oriented than the earlier ones, but the reaction was less so. Both papers were criticized for failing to be, in effect, theoretical enough.
The other issue that I am finding increasing frustrating is the type of discussion that occurs far too often. This is a work-in-progress convention, so feedback is actively sought. When it is of the form, “You are completely wrong and I am completely right,” little good results. It isn’t the disagreement that is the point — it is helping one’s colleague to produce a paper that present her or his views in the best way. Save the disagreement to a responding article, if the point is so important, in the mean time, try to be helpful.
This is the most challenging afternoon of the conference. There are thirty possible short presentations to which I could go. Four of them are by close colleagues about topics of high interests. These four presentations overlap ... Oh well, pick and choose (and prepare your apologies in advance).
If I were the type of individual who liked to delve into one topic and not leave it until I had absorbed it completely, the afternoon would not be pleasant — fortunately, I am not that individual and love the potpourri. One paper on the First Amendment, the next on hearsay and the Confrontation Clause, then one on how scientists and artists innovate. Now the presentation is discussing the difference between interpretation of a patent and its construction (if that doesn’t take you back to contract law, I don’t know what will) followed by a discussion of the antitrust consequences of the reverse payment settlement in the drug world. A virtual ratatouille of law!