One of the great joys of my professional life has been my once-weekly experience teaching an IP elective course to (very) motivated and capable high schoolers. Way back in 2016 — when classes could be maskless, even when in person — I described teaching high schoolers as a “rewarding experience,” which led me to recommend to readers at the time that they should seize any opportunity to teach that came their way. I still believe that, just as I still believe that today’s IP lawyers have an important role to play in educating the public — and especially the next generation of Americans — in at least the basics of IP literacy.
In fact, I am hopeful that some of the regrettable disruption of our educational systems, from college to preschool, will at least generate additional opportunities for IP literacy as part of a well-rounded educational curriculum, especially for high school students and up. The pandemic has confirmed that “we live in a world where it is both easier and harder than ever to bring to market disruptive products and services. The competition is worldwide, and relentless.” I wrote those words in early 2018 but they are even more true today. (For a good recap of the stakes regarding the incoming Biden administration getting IP policy right, I commend this piece by Bruce Berman.) Accordingly, fostering IP literacy in today’s students before they enter the workforce is more important than ever, especially since the pandemic has so radically altered the workforce they will be entering.
Considering how important the issue of IP literacy is to me, I remain fortunate that I have the ability to do something about it, at least in the context of my own class. For this year, I decided to mix things up a bit, primarily by choosing to have patents as the major unit of the semester. In prior years, trademarks and copyrights were the initial IP areas of discussion in the class, partly because it’s a lot easier to get a high school student to think about the branding on the sneakers they are wearing than the chipset in their smartphone.
As a result, the midterm project that was in many ways the highlight of the course previously carried a trademark focus, in the form of a set of domain name disputes that the students could litigate in a moot court-type setting. Since I would rejigger published domain-name arbitration decisions as our case studies, it was relatively easy to develop fact patterns that would be both interesting and workable for the students to work with.
Needing a change, however, I have decided to go with patents as our lead topic for the fall semester. Since one of my motivations for the switch was to challenge myself to keep things fresh in presenting the course, I understood that one of the biggest changes that would result would be in terms of the midterm project. Again, that project is really the centerpiece of the class, as it allows the students to get a taste for the IP lawyer’s role in resolving disputes, while also allowing them to explore how the interplay of law and fact help drive determination of IP matters in a litigation setting.
One of the most humbling things you learn as a teacher is that no matter how simply put or digestible you think your presentation of the material is — you can always do better. That challenge is doubled when you are asking students to handle something very different than anything they have encountered before. In terms of the midterm project, therefore, I was really looking for a case that presented a fact pattern involving easily recognizable technology, ideally embodied in a familiar consumer product. As importantly, I wanted a case that presented interesting — but manageable — questions on the key issues most often litigated in modern day patent cases, namely, venue, infringement, invalidity, and damages.
Since I have a practice of scanning new patent filings anyway, for the last month or so I have kept a special eye out for any cases that could be a good basis for this year’s midterm project. I was thus very pleased when I saw the recently filed lawsuit against Peloton by the originators of the “Spinning” phenomenon, the aptly named Madd Dogg. It was tailor-made for adaption for this year’s midterm project.
Familiar consumer product? Check — particularly due to Peloton’s gonzo performance in the closed-gym pandemic era. Venue issue? Check — as Madd Dogg (smartly) chose to sue Peloton in the Eastern District of Texas, rather than in the SDNY or Delaware, Peloton’s more natural “home courts.” Relatively simple technology? Check — an exercise bike with a screen and some connectivity, allowing for simple adaptation of infringement and validity questions for the class to handle. Money at stake? Check — both in terms of damages from Peloton’s sale of the bikes themselves, as well as the potential for convoyed sales of Peloton subscriptions. In short, plenty of raw material for adapting into a workable competitive endeavor for the class.
I still don’t know, of course, if this year’s project will be a success. For now, I am focused on splitting the class into working teams, on two levels. First, half the class will be assigned to “represent” Peloton and the other the plaintiff Madd Dogg. Then, each legal team will be further split into small groups of two, with each subgroup charged with handling one of the four issues (venue, infringement, validity, damages) that will be litigated. Once the groups are set, I will finalize the fact patterns for each issue, and meet with each of the litigation subgroups to make sure that they are constructing their arguments and conducting any relevant research properly. If all goes well — and school stays open — we should be on track for our oral arguments right after winter break in early February.
My hope is always that my students will get a taste of the fun and intellectual stimulation that can be had from a career in IP law. I recognize that the hands-on nature of the midterm project is perhaps my best chance of planting that seed in them. That is why I dedicate such care to having the project mimic a real dispute as closely as possible given the level of the participants. And it is also why I consider that investment of time so worthwhile. Because whenever we have a chance to plant seeds for the future, we should. 2020 has challenged our commitment to doing so. But we have a responsibility to keep planting. And watering, so that today’s seeds can flourish into tomorrow’s leaders.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.