Proving IP

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Proving IP
May 16-17, 2019
NYU School of Law, Lipton Hall
108 West Third Street
New York, NY 10012
Hashtag: #ProvingIP

Event video is available

Proving IP will explore the most interesting, novel, or challenging proof questions that arise in litigation, administrative proceedings, policymaking, and legislation. The Symposium will bring together scholars, practitioners, and experts with firsthand experience translating legal theory into legal practice in order to explore questions such as:

  • Given current IP doctrines, how do we go about proving everything from protectability to scope to infringement to damages?
  • When considering the range of types of evidence, including expert testimony, survey evidence, and economic evidence, which are best suited to proving particular issues in IP?
  • How do decisions depend on the forum or audience we have in mind, whether it be a judge, a jury, an administrative examiner, or a policymaker?

This undertaking requires us to take substantive doctrine as fixed to the maximum extent possible, so unlike most other IP law conferences, we will assume that the law is both accurate and functional.

CLE is approved for this symposium. CLE materials are available at the bottom of this page.


Register Now!


May 16

9:00-10:00  BREAKFAST

10:00-10:15  Opening Remarks

10:15-11:15  Proving the Creative Contribution: How can you show what it means to contribute sufficient creativity for a work to be protected by intellectual property?

Moderator: Professor Jeanne Fromer (@JeanneFromer)

Douglas Cawley  (McKool Smith)
Stephen Coates (Amazon) (@trademarkninja)
Pamela Samuelson (Berkeley) (@PamelaSamuelson)

11:15-12:15  Keynote - Fair Use: A Ramble Through the Bramble: Judge Pierre Leval, U.S. Court of Appeals for the Second Circuit

12:15-1:15  LUNCH

1:15-2:15  Proving Consumer Perception: What are the best ways to test what consumers and users perceive about a work and how it is being positioned in the market?

Moderator: Professor Barton Beebe

David Bernstein (Debevoise & Plimpton)
Graeme Dinwoodie (Chicago-Kent College of Law) (@GraemeBD)
Johanna Schmitt (Kirkland & Ellis)

2:15-2:30 BREAK

2:30-3:30  Proving Markets: What are the best ways to approach market definitions, demands, and harms?

Moderator: Professor Scott Hemphill

Dale Cendali (Kirkland & Ellis)
Rahul Guha (Cornerstone Research)
Mark McKenna (Notre Dame Law School) (@markpmckenna)

3:30-4:30  Proving Damages: What are the most effective ways to calculate and apportion damages?

Moderator: Professor Christopher Sprigman (@CJSprigman)

Sarah Burstein (University of Oklahoma College of Law) (@design_law)
John Desmarais ('88) (Desmarais LLP)
Kristelia Garcia (Colorado Law) (@kristelia)

4:30-6:00  Please join us for a reception extending the discussions of the first day.

May 17

9:00-9:30  BREAKFAST

9:30-10:30  Proving Similarity: Expert witnesses from both sides of the Blurred Lines case discuss how to analyze and communicate similarities and differences of creative works, as well as the role that technology plays in defining the works to be compared.

Moderator: Professor Joseph Fishman (Vanderbilt Law School) (@jpfishman)

Judith Finell (Judith Finell Music Services)
Sandy Wilbur (Musiodata)

10:30-11:30  Proving Good/Bad Faith and Intent: How can lawyers determine what drives creators and accused appropriators and can that be communicated to fact finders?

Moderator: Professor Rochelle Dreyfuss

Jake Linford (Florida State University) (@LinfordInfo)
Benjamin Marks ('97) (Weil)
Saurabh Vishnubhakat (Texas A&M) (@emptydoors)

11:30-11:45  BREAK

11:45-12:30  Proving the Need for Reform: How are issues identified as 'ripe' for reform, and what is the best way to shape the reform process in the area of intellectual property?

Moderator: Professor Jason Schultz (@Lawgeek)

Amy Kapczynski (Yale Law School) (@akapczynski)
David Kappos (Cravath, Swaine & Moore)
Chris Lewis (Public Knowledge) (@ChrisJ_Lewis)

12:30-1:30  Keynote: Judge Raymond Chen ('94), U.S. Court of Appeals for the Federal Circuit

CLE materials:

Berkheimer v. Hewlett-Packard Company
Reconceptualizing Copyright Merger Doctrine
The Role of Creativity in Trademark Law
Campbell as Fair Use Blueprint?
Fox News Network LLC v. Tveyes Inc.
The Authors Guild v. Google Inc.
Testing for Trademark Dilution in Court and in the Lab
Judging Similarity
LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51

Georgia-Pacific Corp. v. United States Plywood Corp., 258 F.2d 124
Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538
An Intentional Tort Theory of Patents
Mapping the SOPA-PIPA Debate
The Next Great Copyright Act
Breaking the Georgia-Pacific Habit: A Practical Proposal to Bring Simplicity and Structure to Reasonable Royalty Damages Determinations