Today, I will discuss how to integrate a transactionally oriented IP course into the law school curriculum. Some of the ideas here are based on my experiences writing and teaching a co-authored casebook on this subject, Intellectual Property in Business Organizations: Cases and Materials (Lexis-Nexis 2006).

For more reading and a different perspective, I highly recommend, Sean M. O' Connor, Teaching IP From an Entrepreneurial Counseling and Transactional Perspective, 52 Saint Louis U. L. J. 877-90 (2008). I know many schools have implemented a transactional IP course, and I apologize for not mentioning these efforts in more detail.  But I hope people will chime in with their own experiences in this area.

Let me first address the issue for the law school with the lean curriculum where faculty and administrators may view a transactionally oriented IP course as too exotic or impractical to offer. There are ways to integrate a transactional IP component to lean curricula, beyond hiring an upper level adjunct to teach a specialized course to a handful of students. First, transactional concepts can be introduced into a basic IP course with some attention to licensing and employment issues. Second, IP issues can be integrated into a business organizations course, especially one that discusses start-ups. IP issues may also be raised in a discussion of securities and due diligence, to the extent that these topics are addressed in the business curriculum. Such inclusion can enrich the discussion of these fields and introduce contemporary topics.

For a school with a slighter bigger curriculum, there is of course more room to integrate transactional IP courses into the set of electives available for students. A third year capstone course on transactional intellectual property would be a desirable way to introduce business students to intellectual property and intellectual property students to business. Ideally, a survey IP course or a basic Business Organizations course could be prerequisites for the course, or you could require one of these two as a prerequisite. The course could be open to business school students, permitting classroom assignments allowing business and law schools to work together. As a third year capstone course, the focus would be on integrating skills learned during the previous two years of law school and for laying a foundation for future practice.  Such a capstone course would complement courses on law and entrepreneurship like the ones taught and developed by Gordon Smith, Darian Ibrahim, and others. Furthermore, for law schools that are associated with universities with technology transfer offices, such a course might benefit students employed by these offices or might serve as a basis for a clinical IP component in the curriculum, very likely connected to a technology transfer office.

Thinking more globally, a transactional IP course might alter how IP and business transactions are taught. In most schools, IP is introduced through a survey course. There is some ongoing controversy over whether an IP course is necessary, but my sense is that the debate is over with most serious schools offering a survey IP course that presents the four big areas of IP (trade secrets, copyright, patent, and trademark) in an integrated and comprehensive way. The idea behind such a course is to lay a foundation for more advanced courses. While this survey course has traditionally been doctrinally focused with an eye towards litigation practice as the norm, there is no reason why the basic survey course could not be taught as a transactions-oriented course. The two principle themes of the course would be identifying IP assets (that is, identify what can be the basis for trade secret, copyright, patent, or trademark protection), learning how to secure rights in these assets (use of NDA's and non-competes, the basics of patent and trademark prosecution, an introduction to work-for-hire and other employment issues), and learning how to realize value through licensing practice. Personally, I have not taught the survey course primarily in this way when I have taught it. I do touch on some of the business issues raised by IP, but my course has been fairly traditional. There is no reason, however, why the survey course could not taught with a transactional slant as opposed to the traditional litigation or constitutional policy slant. I should point out here that my co-authors Richard Gruner and Jay Kesan have an IP survey casebook with Thomson-West (on which Robert Reis is also a co-author), and we have tried to integrate transactional concepts into that book, partly to lay a foundation for our IP and Business Organizations course and casebook (previously mentioned).

In addition, transactional IP might alter how we think of the traditional business organizations course. Intellectual property is an important tool for business organizations, a mechanism for codifying knowledge within a firm and for defining its boundaries. Scholarship by Paul Heald, Dan Burk and Brett McDonnell (as well as myself) have explored this issue. In terms of teaching, the links between IP and the firm would shift the focus of the traditional business course to start-ups, employment, and licensing issues. For those who cover business taxation, the intersection of IP and tax could also be introduced. Some reading this may view my suggestion as just adding more to an already bulging course. My suggestion, however, is not to add to the set of materials out there, but to propose an alternative way of teaching transactional skills that recognizes how intellectual property issues inform current practice and shape the legal regulation of business activity.

Tomorrow, I turn to this last point, legal regulation, and show how IP 3.0 reflects and shapes how IP policy has evolved over the past few years, especially as seen in Supreme Court decisions.

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