1 how to find and read the law and live to tell (and talk) about it steve baron january 25, 2006

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How To Find and Read the How To Find and Read the Law and Live to Tell (and Talk) Law and Live to Tell (and Talk)

About ItAbout It

Steve BaronSteve Baron

January 25, 2006January 25, 2006

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““Laws are like sausages, it Laws are like sausages, it is better not to see them is better not to see them

being made.”being made.”

Otto von BismarckOtto von Bismarck

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Today’s AgendaToday’s Agenda

Introduction to How IP Law Is MadeIntroduction to How IP Law Is Made Introduction to Case AnalysisIntroduction to Case Analysis

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How Does IP Law Develop?How Does IP Law Develop?

Federal and State LegislationFederal and State Legislation e.g. Trademark Act, Copyright Act, e.g. Trademark Act, Copyright Act,

Patent Act, Illinois Trade Secrets Patent Act, Illinois Trade Secrets ActAct

Federal and State Case Law Federal and State Case Law (“Common Law”)(“Common Law”) e.g. Judge made law emerging out e.g. Judge made law emerging out

of judicial opinionsof judicial opinions

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How Does IP Law Develop - How Does IP Law Develop - LegislativeLegislative

Legislative Process (Federal)Legislative Process (Federal) Industries lobby for lawIndustries lobby for law Bill sponsoredBill sponsored

• E.g. Sony Bono – CTEAE.g. Sony Bono – CTEA Debate ensuesDebate ensues House and Senate VoteHouse and Senate Vote President signs bill into lawPresident signs bill into law

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How Does IP Case Law Get How Does IP Case Law Get Created - JudicialCreated - Judicial

Individual parties bring a case to a trial Individual parties bring a case to a trial court’s attentioncourt’s attention

Litigation ensuesLitigation ensues A decision or verdict is issuedA decision or verdict is issued An appeal takes placeAn appeal takes place An appellate court issues an opinionAn appellate court issues an opinion The opinion becomes part of the common The opinion becomes part of the common

lawlaw

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The Court System (Federal)The Court System (Federal)

First Tier – Federal District Court (trial First Tier – Federal District Court (trial court)court)

Second Tier – Circuit Courts of AppealSecond Tier – Circuit Courts of Appeal Third Tier – U.S. Supreme CourtThird Tier – U.S. Supreme Court

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How to Find the Law on the WebHow to Find the Law on the Web

Federal Legislation (the stuff from Federal Legislation (the stuff from Congress)Congress) http://www4.law.cornell.edu/uscode/http://www4.law.cornell.edu/uscode/

• Type in title and sectionType in title and section

• e.g. Copyright = Title 17e.g. Copyright = Title 17

• e.g. Infringement = Section 501 e.g. Infringement = Section 501 et. seq.et. seq.

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State LawState Law

http://wwwsecure.law.cornell.edu/states/listing.html

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U.S. Supreme Court OpinionsU.S. Supreme Court Opinions http://www.supremecourtus.gov/http://www.supremecourtus.gov/

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Click “Opinions”Click “Opinions” Click “Latest Slip Opinions”Click “Latest Slip Opinions” Find Find Eldred v. AshcroftEldred v. Ashcroft

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How to Read A CaseHow to Read A Case PlaintiffPlaintiff

a party who complains or sues in a civil actiona party who complains or sues in a civil action DefendantDefendant

a party who is being sued by a plaintiffa party who is being sued by a plaintiff AppellantAppellant

a party who appeals from a decision by a trial or a party who appeals from a decision by a trial or “lower” court“lower” court

AppelleeAppellee a party who responds to an appeal by appellanta party who responds to an appeal by appellant

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How to Read a CaseHow to Read a Case

PetitionerPetitioner Party seeking appeal in the U.S. Party seeking appeal in the U.S.

Supreme CourtSupreme Court RespondentRespondent

Party responding to a petition to the Party responding to a petition to the U.S. Supreme CourtU.S. Supreme Court

Writ of CertiorariWrit of Certiorari An order of an appellate court granting An order of an appellate court granting

or denying a petition to appealor denying a petition to appeal

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How to Read a CaseHow to Read a Case Stare Decisis – Stare Decisis – Decided lawDecided law HoldingHolding

The narrow holding or controlling principal of The narrow holding or controlling principal of the case that will bind other partiesthe case that will bind other parties

DictaDicta The additional discussion within an opinion The additional discussion within an opinion

that helps the court illuminate its reasoningthat helps the court illuminate its reasoning Majority/Minority – The lineup when less Majority/Minority – The lineup when less

than unanimous decisionthan unanimous decision

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AffirmedAffirmed When an appellate court agrees with the When an appellate court agrees with the

lower court decisionlower court decision ReversedReversed

When an appellate court disagrees with and When an appellate court disagrees with and overturns the lower court decisionoverturns the lower court decision

RemandedRemanded When an appellate court sends a case back When an appellate court sends a case back

to the lower court for further proceedingto the lower court for further proceeding

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What happens after the appellate What happens after the appellate decision?decision? Case may end; orCase may end; or Case may continue in trial courtCase may continue in trial court

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AssignmentAssignment

Please find and read the majority opinion Please find and read the majority opinion by Justice Ginsburg the United States by Justice Ginsburg the United States Supreme Court’s opinion in Supreme Court’s opinion in Eldred v. Eldred v. AshcroftAshcroft

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AssignmentAssignment

Who are the parties?Who are the parties? How did the case get to the Supreme How did the case get to the Supreme

Court?Court? What were the questions the court was What were the questions the court was

asked to decide?asked to decide? How did the majority decide?How did the majority decide? What impact will this decision have on What impact will this decision have on

copyright law?copyright law?

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““The purpose of law is to prevent The purpose of law is to prevent the strong always having their the strong always having their

way.”way.”

OvidOvid

1 how to find and read the law and live to tell (and talk) about it steve baron january 25, 2006

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