Back in 2018, I made the case for helping today’s high schoolers develop a level of IP literacy. Why? Because “IP literacy is an essential skill for anyone hoping to succeed in today’s economy, regardless of their chosen field or business,” and young Americans today — with their technological facility and understanding of the role of large corporations in the global economy — are primed to quickly grasp IP concepts and see how IP issues come into play in their daily lives. But someone has to be willing to teach the subject, even as “having a standalone IP literacy course along the lines of the elective class I have been teaching at my high school for the past few years, or simply incorporating IP literacy into existing technology, science, or coding-type courses is immaterial” in terms of making sure students are exposed to this all-important subject matter. What was true in 2018 remains just as true today, at least in terms of the importance of fostering an entrepreneurial spirit in today’s youth, while arming them to compete in the economy of tomorrow.
As I still have the pleasure of teaching the high school IP survey course I discussed in that 2018 column, I wanted to report on a recent classroom experience that I think highlights just how easy it can be to get students enthralled with IP law, thereby increasing their IP literacy. Every year, in addition to having my students participate in a mock IP dispute as part of the class, I also try to find an opportunity to expose them to an actual oral argument in a case of import to the IP world. Before this year, I would choose either a juicy federal circuit argument, ideally related to an issue we had discussed in class, or sometimes a 9th Circuit argument on a soft IP issue of importance. In my experience, the students tended to prefer the visual aspect of the 9th Circuit over the auditory experience of a federal circuit argument, even though there is not much of visual interest in seeing a lawyer at a podium (or in their office in the COVID-era Zoom arguments) answering questions from three judges. But I guess my students also prefer YouTube to podcasts.
This year, I aimed for a bit of an enhanced experience for both myself and the students. To start, I looked for a pending Supreme Court case involving an IP issue that would be of interest to my students. Thankfully, such a case was not hard to find this year, in the form of the trademark parody case involving Jack Daniels and a chewy dog toy still available for sale in the dark recesses of the e-commerce realm. As would be expected, none of my students were whiskey aficionados, but we were able to have some good conversations in class on questions of parody, trademark bullying, and even what level of customer confusion rises to the level of a Lanham Act violation in the context of the case. While we covered those issues in the fall semester, in the back of my mind I always intended to take advantage of the opportunity to listen to the SCOTUS oral argument on the case, given that the students were familiar with the issues.
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Initially, I hoped to listen to the argument live with my class, but logistical issues made that an unworkable option — which was a blessing in disguise, since I was then able to review both the transcript of the argument as well as a lot of learned discussion of what transpired in the argument in the IP and general media. That helped me plan out a more productive listening session, which was held over two class periods this past week. To start, I introduced my students to the role of oral argument in helping appellate courts decide the issues before them, as well as why this particular case garnered so much outside interest in the form of amicus briefs and the government’s involvement. We looked at the stellar biographies of the arguing lawyers and discussed what goes into a leading appellate practice. Then it was time to listen to snippets of the argument.
From the outset, the students were engaged and listening intently. It helped that the opening presentation was by a legendary oral advocate, Lisa Blatt — and that the SCOTUS justices did not hold back in engaging with her. My students appreciated how she framed the case for the Supreme Court, as well as her demonstrated skill in taking on the justices’ questions, first by responding directly to what was asked, followed by making sure to advance the arguments that favored her client’s position. The students enjoyed her repartee with certain justices, while also being split on whether her argument style betrayed too much familiarity with the court, as some charged her with after the argument. We also listened to snippets of the argument involving her opposing counsel, Bennett Cooper, including the humorous exchange when Justice Gorsuch expressed surprise that his offer of a win was being rejected in favor of the “landslide” victory that he was seeking on behalf of his client. At the same time as they were enjoying the moments of levity, it was obvious that the students were also appreciating the level of preparation shown by both advocates and the court, as well as the fact that the court was as concerned, if not more, with the impact of its decision on other cases than on the particular case being argued before it.
Ultimately, the time flew by and I gained a newfound appreciation of the pedagogical benefit of using an actual oral argument as a teaching tool for high school students. There were a few elements that I think contributed to the success of the exercise, starting with the fact that they went into the argument familiar with the case being argued. Second, my listening to the argument in advance and having a sense for how to outline the experience was essential in maximizing the experience for the students. Third, having an argument where skilled counsel was engaged with a probing bench helped keep the students’ interest in the proceedings at a high level. Taken together, the exercise was a great example of how we can help encourage IP literacy, just by asking students to do some learning by listening.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
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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 [email protected] or follow him on Twitter: @gkroub.