I’ve just posted a new essay on SSRN.  It’s entitled “Level of Skill and Long-felt Need: Notes on a Forgotten Future.”

Here’s the abstract:

The Supreme Court’s KSR decision transforms the way we think about patent law’s ordinary artisan.  The ordinary artisan, the Supreme Court states, “is also a person of ordinary creativity, not an automaton.”  This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit’s nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan’s level of skill at the time the invention was made?  Reaching back to a large vein of case law typified by Judge Learned Hand’s decisions about nonobviousness, as well as an all-but-forgotten nonobviousness bill that died in committee in 1948, I show that the modern “level of skill” inquiry can comfortably rely on evidence of long-felt, unmet need in the art and the failure of others to meet that need.  For it remains true, as Judge Hand once observed, that “the best test of what persons of routine ingenuity can do is what they have  done.”

If you would like to download a pdf of the essay, please follow the link to SSRN.  And I welcome any feedback you care to offer on the paper.

Mike Madison has a wonderful, if scary, post at Madisonian for entering law students.  Give it a read!

In 1977, to commemorate the 25th anniversary of the creation of section 103 as part of the 1952 recodification of the Patent Act, John Witherspoon organized a conference on section 103.  It lead to the publication of a BNA volume entitled, “Nonobviousness-The Ultimate Condition of Patentability.”

My question is this: Has there been, since that 1977 conference, any other U.S. law conference devoted entirely to patent law’s nonobviousness standard?  If you know of such a conference (e.g., from having attended it, or having seen a law review issue devoted to its proceedings), please leave a comment to this post with as much information about it as you can remember.

Thanks!

Another law review offers a web-based adjunct … this time, at my alma mater, Northwestern University. The Nw. U. L. Rev. goes live with Colloquy on November 1, 2006.  At the moment, their pre-live page describes the plan.

I agree with Geoff :  Mike Madison’s post about technology and legal scholarship, yesterday at Madisonian, is a must-read for lawprofs.  It’s concise and provocative (in other words, vintage Madison).

A highly compressed quotation:

First, we’d have to agree to stop debating whether something is “scholarshipâ€? or not, and instead start talking about where and when and how different types of writing and speaking and presenting engage each other. … Second, not only would we have to bear in mind obvious interdisciplinary issues, but also the fact that there are legal academics in other countries who are interested in this discussion. And how about the practicing bar? Remember our former students? There’s a real opportunity for the Future of Legal Scholarship to break down the insularity of the American legal academy.

RTWT, now!

Matt Bodie announced, earlier today, PrawfsBlawg’s new “Research Canons” Project.  It sounds like a highly worthy project to me.  Here’s the first paragraph from Matt’s post:

Prawfsblawg is pleased to announce the “Research Canons” project.  The purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.

Check it out.  And pitch in!

Another law review has joined the fray with a web-based adjunct publication for shorter pieces, including responses to and comments on pieces published in the journal.  This time, it’s the University of Pennsylvania Law Review, with PENNumbra.  There’s already a Yale Law Journal Pocket Part, a Harvard Law Review Forum, and a Michigan Law Review First Impressions.  Any others I’m missing?

In today’s New York Times, a story appears about an online game called “Disaffected!“, created by Persuasive Games.

Persuasive Games is in, no surprise, the persuasion business:

With over 30 years of combined success in marketing, advertising, game research, and design, Persuasive Games is the natural choice of leading advocacy groups and lifestyle brands who want to communicate effectively through electronic games. Our games influence players to take action through gameplay. Games communicate differently than other media; they not only deliver messages, but also simulate experiences. While often thought to be just a leisure activity, games can also become rhetorical tools. [ from PG’s website ]

In the new game, PG takes a different tack about nonclient Kinko’s:

Disaffected! - a videogame parody of the Kinko’s copy store, a source of frustration from its patrons. Disaffected! puts the player in the role of employees forced to service customers under the particular incompetences common to a Kinko’s store. From a new series of persuasive games we call anti- advergames.

Disaffected! gives the player the chance to step into the demotivated position of real FedEx Kinko’s employees. Feel the indifference of these purple-shirted malcontents first-hand, and consider the possible reasons behind their malaise — is it mere incompetence? Managerial affliction? Unseen but serious labor issues? [ from PG’s website ]

The NYT story quotes Fordham law professor Sonia Katyal on the more general phenomenon she calls “semiotic disobedience” — “the reinvention or subversion of logos and other symbols of commercial persuasion as part of a battle to redefine their meaning in ways that are frankly oppositional.” More from the NYT:

Katyal’s paper makes clear that she is not calling for, say, the legalization of billboard alteration. Instead, she offers a different intellectual framework for thinking about such acts. Her point is to consider whether some antibrander tactics are not simply vandalism or trademark infringements but rather acts that break laws partly to question the assumption behind the laws themselves. “Acts of semiotic disobedience,” as she puts it, “actually try to disobey the meaning of the sign itself” and to redefine that meaning in the process.

The story also quotes PG exec Ian Bogost: “And Ian Bogost says that he believes Disaffected! is a legally protected parody.”

A mighty interesting story from law.com, dateline July 14, 2006: Stanford Law School is leading the creation of a comprehensive database on i.p. litigation. It will be called the Stanford Law School IP Litigation Clearinghouse. The goal is as worthy as it is difficult to achieve.

From the story:

Stanford hopes to build the first database of all intellectual property litigation in the country. Organizers and financial backers of the project say it will help lawyers track ongoing cases and settlement trends. It should encourage academics to do more empirical research based on the data collected. And finally, it could help lawmakers and policymakers craft IP laws and regulations. …

A brainchild of Stanford patent law professor Mark Lemley, the IP clearinghouse is modeled after the school’s successful online securities litigation database. Started in 1996 by law professor Joseph Grundfest to monitor the effect of the 1995 Private Securities Reform Act, the database has since become a handy resource for legal scholars, journalists and lawyers.

But unlike the securities database, the IP litigation clearinghouse will cover more than one type of litigation. Walker said the plan is to initially track patent, copyright and trademark actions

I hope they succeed!

Please openly access this great story about open access publishing of scholarly research. In it, Wired’s Jamie Shreeve uses Harold Varmus’ work as Public Library of Science founder as a framework for talking about open access publishing of the scholarly serial literature.

A fun graf:

Varmus is the most visible characterin the movement to free the scientific world of its figurative corks: scholarly journals that restrict the flow of information by charging often hefty subscription prices for access to their content. Today, Varmus has been invited by Charles Nesson, a professor of law at Harvard, to enlighten the student editors of the various Harvard Law School journals about the virtues of so-called open-access publishing. Nesson introduces his guest as “the prophet of open access.� Varmus’ smile doesn’t fade, and his hair stands proudly where the wind last left it.

As they say, read the whole thing!

And if you want to learn more about open access publishing, here’s a resource page I created about it (in conjunction with a Lewis & Clark Law Review conference this March called “Open Access Publishing and the Future of Legal Scholarship.”)

[ Hat tip to William McGeveran’s fine open access publishing post at Info/Law. ]