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Roundtable on Remedies

Our faculty have gained national recognition for their research. Professor Mark McKenna, an expert in trademark law, wrote five of the ten most cited trademark articles from 2010 to 2014 and regularly files amicus briefs at the U.S. Supreme Court. A hallmark of Professor McKenna’s scholarship is interest in design law and design’s effect on privacy law. Concerned with intersecting intellectual property rights regimes and the intersection of IP rights with adjacent rights, Professor McKenna’s scholarship investigates the scope of intellectual property rights and the design of claiming. 

Professor Stephen Yelderman’s scholarship in Patent Law and Remedies explores the boundaries of the U.S. patent system and the intersection of patent law with other areas of law, including antitrust. 

Research networks with academics in the United States and abroad foster the Program’s study and research of design and law. The annual Design Law Scholars’ Roundtable, in partnership with the Chicago-Kent College of Law Center for Design, Law & Technology gathers scholars in an informal, academic setting to discuss the existential foundations of design and law, and the dis-junctures and complementary aspects of legal thought and non-legal thought about design. Roundtables held on campus allow for deep discussion of recently published scholarly texts on design, intellectual property, and technology law with the author and commentators. Students benefit from the faculty’s commitment to research and the complementary events, writing papers that place in national competitions, such as the Berkeley Technology Law Journal’s annual writing competition. 

Research Spotlight - Mark McKenna

Mark McKenna

Professor Mark McKenna

One of Professor Mark McKenna's most recent papers, "Unfair Disruption," focuses on incubments' invocation of intellectual property and related claims for the purpose of preventing disruptive new technologies or business modes.  

Co-authored with Mark Lemley — William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology — the paper argues that courts should recognize incumbents' legal claims only when disruptive entrants threaten fundamental policies of the regimes invoked to prevent entry, and not simply when they threaten to displace the incumbents. The paper then suggests a test to separate legitimate cases of IP infringement from cases of pure market disruption. 

"Our primary point is that incumbents often use legal tools – including but not limited to IP, antitrust, regulation, and a variety of business torts – to prevent disruption of their business models. That’s not always illegitimate – sometimes the legal tools are designed to give them that right, at least against certain kinds of disruptions," McKenna said in an interview with the Disruptive Competition Project. "But it’s important for courts to differentiate between disruptions that implicate the underlying policy concerns of a legal regime (disruptions that might undermine incentives to invent or to disseminate, for example) and other disruptions that aren’t likely to have those effects even if they negatively impact a particular incumbent. In our view, courts sometimes are too eager to react to mere disruption when competition would be more socially valuable."

 

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