Fordham Intellectual Property Law Institute

Sixteenth Annual Conference INTELLECTUAL PROPERTY LAW & POLICY Thursday and Friday, March 27 and 28, 2008 Hugh C. Hansen, Director

CONFERENCE PROGRAM

www.fordhamipconference.com

Thursday, March 27th

8:00 – 8:30 Registration and Continental Breakfast

8:30 – 8:45 Welcoming Remarks William Michael Treanor, Dean, Fordham University School of Law

In Memoriam

Rt. Hon. Lord Justice Pumfrey

SESSION 1: Plenary Session (Thursday, 8:45 AM – 1:00 PM) (McNally Amphitheatre)

8:45 – 9:15 The World Intellectual Property Organization

Who will be chosen to lead it? Will it make a difference? What will be WIPO’s future role? Will adoption of the norms of the Development Agenda make it more or less relevant as a multilateral institution?

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

Speaker:

Richard Wilder, Associate General Counsel for IP Policy, Microsoft Corp., Redmond

WIPO at a Crossroads

What is the process for the selection of a new WIPO Director General? How is the Development Agenda unfolding following its adoption last year? What is next for WIPO in norm development - and what will be the effect of bilateral and regional arrangements in the field?

Panelists: Mihály Ficsor, Director, Center for Information Technology and Intellectual Property (CITP), Budapest Prof. Johanna Gibson, Queen Mary, University of London James Love, Director, Knowledge Ecology International, Wash. DC Shira Perlmutter, Executive Vice President, Global Legal Policy, IFPI, London

9:15 – 9:45 United States v. China in the WTO

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

The WTO dispute-resolution panel has been appointed. Eleven countries and the European Union have reserved their right to participate in the panel proceedings as third parties. The USTR has filed its first brief and made it public (proceedings and filings are not made public by the WTO). What are the issues? Is the WTO panel decision in the copyright dispute over “Fairness in Music Licensing” provisions in 17 U.S.C. 110 relevant? Was it a mistake for the US to initiate this? What is and/or will be the reaction of other nations? How will it be resolved?

Speaker: Prof. Victoria Espinel, George Mason University School of Law

Panelists: Prof. Susy Frankel, Victoria University of Wellington, New Zealand Prof. Daniel Gervais, Acting Dean of Common law, University of Ottawa Prof. Justin Hughes, Benjamin N. Cardozo School of Law, Yeshiva University

9:45 – 10:35 The European Union and IP Law

What are the current IP goals of the European Commission? Are they appropriate? Why the sudden interest in performers? Is further unification or centralization of patent law and institutions possible? Will there be cutting back on IP protection in existing directives?

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

Speakers:

Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, European Commission, Brussels Harrie Temmink, Industrial Property Unit, DG Internal Market and Services, European Commission, Brussels

Panelists: Prof. P. Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam Phillip Johnson, Barrister, 7 New Square, London David Keeling, Boards of Appeal, OHIM, Alicante Hon. Robert van Peursem, Vice President, District Court The Hague, The Netherlands David Sweeney, Senior Legal Counsel, Interactive Software Federation of Europe, Brussels Prof. Alain Strowel, Covington & Burling, Saint-Louis University, Brussels

10:35 –10:55 Break

10:55 – 11:45 The European Court of Justice, the U.S. Supreme Court and IP Law

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

European Court of Justice

Are there any trends in the IP jurisprudence of the ECJ? What can we learn from its trademark jurisprudence? To what degree have Member State courts or OHIM followed its lead? What can be expected from the Court in IP/Competition case law? To what extent has it been able to contribute to harmonization and certainty in Member State and Community IP law? How much more difficult is it to be consistent and clear in its IP judgments after enlargement of the EU and expansion to 27 judges? What is the prognosis for the future?

Panelists: Prof. Lionel Bently, Cambridge University, UK Prof. Willem Grosheide, University of Utrecht David Keeling, Boards of Appeal, OHIM, Alicante John Temple Lang, Cleary Gottlieb Steen and Hamilton, Brussels William Robinson, Freshfields Bruckhaus Deringer, London

United States Supreme Court

Panelists: Prof. Rochelle Dreyfuss, New York University School of Law Hon. Paul R. Michel, Chief Judge, Court of Appeals for the Federal Circuit Hon. Pauline Newman, Court of Appeals for the Federal Circuit Hon. Randall R. Rader, Court of Appeals for the Federal Circuit Prof. John R Thomas, Georgetown University School of Law

11:45 – 1:00 General Counsels’ Roundtable: A View from the Top

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

Panel Discussion

Panelists: Paul T. Cappuccio, Executive Vice President & General Counsel, Time Warner Richard Cotton, Executive Vice President & General Counsel, NBC Universal Michael Fricklas, Executive Vice President, General Counsel & Secretary, Viacom Lawrence A. Jacobs, Senior Executive Vice President & Group General Counsel, News Corp. Brad Smith, Senior Vice President, General Counsel, Corporate Secretary, Legal & Corporate Affairs, Microsoft Corp.

1:00 – 2:15 Lunch (Platt Atrium and Room 430)

Thursday Afternoon, March 27th

Three Concurrent Sessions

SESSION 2: Copyright Law Concurrent Session

Thursday, 2:15 PM – 6:15 PM (McNally Amphitheatre)

2:15 – 3:00 Copyright Agenda in the European Union: A view from the Commission

Moderator: Morton David Goldberg, Cowan, Liebowitz & Latman, P.C.

Speaker: Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, European Commission, Brussels

Panelists: Prof. P. Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam Dr. Silke von Lewinski, Max Planck Institute for Intellectual Property, Munich

3:00 – 3:55 Sound Recordings

US, EU and global terms of protection; increased protection for performing artists; role of Sound Exchange; Sec. 115 revision

Moderator: Morton David Goldberg, Cowan, Liebowitz & Latman, P.C.

Speakers: David Carson, Associate Register for Policy & International Affairs, U.S. Copyright Office, Wash. DC

The new efforts to expand the public performance right for sound recordings in the U.S., and the Copyright Office regulatory activity with respect to the section 115 compulsory license, especially with respect to digital phonorecord deliveries.

Shira Perlmutter, Executive Vice President, Global Legal Policy, IFPI, London John Simson, Executive Director, SoundExchange, Wash. DC Others to be announced

Panelists: Prof. Lionel Bently, Cambridge University, UK Fabienne Brison, Howrey LLP, Free University of Brussels Barbara Norcross-Amilhat, Principal Administrator, Copyright and Knowledge- Based Economy, DG Internal Market and Services, European Commission, Brussels

4:55 – 4:20 Break

4:20 – 5:50 Digital Licensing Issues

Online licensing initiatives, role of collective rights management associations

Moderator: Eric Schwartz, Mitchell, Silberberg & Knupp, Wash. DC

Europe

Speaker: John Temple Lang, Cleary Gottlieb Steen and Hamilton, Brussels

European Music Online - the Three Scenarios

There are several reasons why radical changes in performing rights for music distribution are now being discussed in Europe. There are three scenarios: revised reciprocal agreements, a centralized system, and a series of licenses by big music publishers to specific collection Societies. Each has advantages and disadvantages.

Sarah Faulder, Public Affairs Director, MCPS-PRS Alliance, London

Panelists: Dr. Silke von Lewinski, Max Planck Institute for Intellectual Property, Munich Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, European Commission, Brussels David Sweeney, Senior Legal Counsel, Interactive Software Federation of Europe, Brussels

United States

Speaker: Hon. Marybeth Peters, Register of Copyrights, U.S. Copyright Office, Wash. D.C.

Panelists: Gil Aronow, Senior Vice President, Business & Legal Affairs, Commercial Music Group, Sony BMG Music Entertainment Sandra Aistars, Assistant General Counsel for Intellectual Property, Time Warner Inc. Sarah Faulder, Public Affairs Director, MCPS-PRS Alliance, London Joseph Salvo, Special Counsel, Intellectual Property & Media Group, Weil, Gotshal & Manges Kathryn E. Wagner, Vice President & Counsel, National Music Publishers Ass’n

SESSION 3: Patent Law Concurrent Session

(Thursday, 2:15 PM – 5:50 PM)

2:15 – 3:00 TheScope of Patentable Subject Matter: What is Afoot?

Lab Corp. v. Metabolite and its aftermath; In re Bilski and business methods patents

Moderator:

Prof. Jeanne Fromer, Fordham University School of Law

Speaker: Hon. Paul R. Michel, Chief Judge, Court of Appeals for the Federal Circuit

Limits on Patentable Subject Matter: What are the issues requiring clarification or resolution?

In Re Comiskey, In Re Bilski, and Business Method Patents: Is physical transformation needed for inventions not implemented by computer and for those that are computerized, must use of the computer be necessary?

Panelists: Natalie Derzko, Covington & Burling, Wash. D.C. Chuck Fish, Vice President & Chief Patent Counsel, Time Warner Deborah Somerville, Kenyon & Kenyon Prof. Katherine J. Strandburg, N.Y.U School of Law (visiting)

3:00 – 3:25Break

3:25 – 5:05 KSR and its Aftermath

What is its effect on U.S. patent prosecution and litigation? How does the state of U.S. law compare to patent prosecution and litigation in Europe and Asia?

Moderator: John Richards, Ladas & Parry

The United States

Speakers: David S. Bloch, Winston & Strawn, San Francisco Charles Eloshway, Attorney-Adviser, Office of International Relations, U.S. Patent and Trademark Office, Arlington, VA John Richards, Ladas & Parry

Europe & Asia

Speakers: John Richards, Ladas & Parry

What is the purpose of the non-obviousness requirement? How do the EPO, UK, Germany and Japan approach the question?

Peter Vermeij, Vice President, European Patent Office, DG 2, Munich Panelists: Hon. Ken Asai, Judge, IP High Court, Japan Hon. Paul R. Michel, Chief Judge, Court of Appeals for the Federal Circuit Brian P. Murphy, Morgan Lewis Hon. Randall R. Rader, Court of Appeals for the Federal Circuit

5:05 – 5:50 USPTO Rules Changes: Should the PTO have substantive rulemaking authority?

One aspect of the proposed patent reform legislation would give the USPTO authority to issue substantive rules interpreting US patent law, which it has never had before. Should the PTO be permitted to make rules on substantive patent law and, if so, what effect would this have on patent policy and innovation in the US?

Moderator: Nicholas Groombridge. Weil, Gotshal & Manges

Speaker: Prof. John R. Thomas, Georgetown University School of Law

Panelists: Chuck Fish, Vice President & Chief Patent Counsel, Time Warner David Jones, Senior Attorney, Microsoft Corp., Redmond. Philip Johnson, Chief Patent Counsel, Johnson & Johnson

Q. Todd Dickinson, Vice President and Chief Intellectual Property Counsel, General Electric, Fairfield, CT

SESSION 4: Antitrust/Competition Law & Intellectual Property Concurrent Session

Thursday, 2:15 PM – 5:50 PM (Room _______)

2:15 – 3:15 Microsoft, the CFI, and the Aftermath in the EU and U.S.

Moderator:

Speakers Maurits Dolmans, Cleary Gottlieb Steen & Hamilton, Brussels

James Killick, White & Case, Brussels

The Microsoft Judgment and Its Implications for (Dominant) IP Holders What will be the post Microsoft judgment test for compulsory licensing in Europe and what are its implications for all dominant companies who will have difficulty in judging how to respond to a request for a license from a competitor.

Carey Ramos, Paul, Weiss, Rifkind Wharton & Garrison

Panelists: Prof. Valentine Korah, University College London (Emeritus) Christopher Stothers, Milbank Tweed Hadley & McCloy LLP, London

3:15 – 4:15Competition/Antitrust Laws and Agencies: Global Cooperation? Convergence or Divergence?

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

Speakers: Daryl Lim, research scholar, Max Planck Institute of Intellectual Property, Munich

Global Trends in Convergence and Divergence at the IP-Competition Interface

Points of convergence and divergence are demonstrated in current developments in Asia, the EU, and the US. There is both convergence and divergence. For the future what roles will rapid technological changes, new business models and new global players play in this evolving process? How can relevant parties successfully adapt to these challenges?

Panelists: Prof. Thomas Cheng, Faculty of Laws, University of Hong Kong James B. Kobak, Jr., Hughes Hubbard Prof. Christopher Leslie, New York University School of Law (visiting) Christof Swaak, Stibbe, Amsterdam John Temple Lang, Cleary Gottlieb Steen and Hamilton, Brussels

4:10 – 4:40Break

4:40 – 5:50Member States Competition Enforcement in the EU: the Role and Interaction of Member State Competition Authorities, Private actions in Member State Courts

The competition law system under Community Reg 1/2003 setting forth the rules concerning Member State competition authorities’ jurisdiction and interaction with the European Commission; subsequent IP related case law; competition authorities’ decisions and their effect on private enforcement; forum shopping.

Moderator:

Speakers: Monika Tomczak, Miller, Canfield, Paddock & Stone, Warsaw

Post modernization landscape of competition law enforcement in the EU

Following the adoption of of EU legislation (Regulation 1/2003), the regime of competition law enforcement across the European Union changed considerably. Under the decentralized system, not only the European Commission and the Community Courts apply EU Competition Law, but it is co-enforced by national competition authorities and courts. The new system can also affect disputes related to IP laws. Why was the system changed? Is the new system an improvement? By providing more choices might it produce a more effective enforcement mechanism? Or on the other hand, might disrupt settled expectations, and reduce uniformity in the law and predictability?

Prof. Jeroen Kortmann, Stibbe, Amsterdam

The Future of Private Enforcement Actions in the EU

Panelists: Maurits Dolmans, Cleary Gottlieb Steen & Hamilton, Brussels Prof. Valentine Korah, University College London (Emeritus) Others to be added

[Parallel imports and competition law, see Friday afternoon. Standards and competition law, see Thursday morning.]

6:00 – 8:00 Reception (Platt Atrium)

Friday, March 28, 2008

Friday Morning, March 27th

Three Concurrent Sessions

8:30 AM – 1:15 PM

SESSION 5: Standard Setting -- the Interplay with IP and Competition laws Concurrent Session

Friday, 8:30 AM – 9:50 AM

Standard making organizations, the benefits derived from adopted standards and their licensing; the potential competition pit-falls from the EU and US (exclusion of non-selected technologies, patent pool, unilateral licensing practices, collective boycotts etc. and the current approach of competition authorities, including a view from the Commission); do standards bodies infringe Article 81/Section 1 if they go on discussing a standard when they know that licenses of essential patents will not be granted on FRAND terms ? Can standards organizations regulate their own affairs, or is it inevitable that competition/antitrust law enforcement will get involved? Is there a kind of patent ambush if a patent owner gives one impression, before a standard is adopted, about the royalty rates it will charge on the basis of a FRAND promise, but raises the rates afterwards? What changes, if any, need to be made in standards organizations' rules to prevent antitrust issues? Review of current enforcement cases such as Nokia v. Qualcomm and Rambus. The status of open source.

Moderator: Gonzalo Ulloa, Gómez-Acebo & Pombo, Madrid

Speakers:

Maurits Dolmans, Cleary Gottlieb Steen & Hamilton, Brussels

Standards, IP and Competition: Avoiding an unFRANDly environment

Timo Ruikka, Strategy Advisor, IPR Intellectual Property, Nokia Corp.

FRAND from a Business Perspective

Business objectives of standardization dictate that FRAND must have binding effect controlling the bargaining power of essential patent holders as licenses are negotiated much after substantial investment in standard-compliant products and services. Specifically, FRAND must mean that the total cost of licenses to all Essential patents is compatible with investing in implementations.

Jonathan Moskin, White & Case

Wolfgang von Meibom, Bird & Bird, Düsseldorf

European case law on FRAND defense in Patent Infringement Proceedings

A review of the issues with regard to a FRAND defense as a relatively new development in a patent infringement proceeding; particular attention to use with regard to “patent trolls”; review of recent German case law

Jason Albert, Director of International IP Policy, Microsoft Corp., Redmond

The Business Realities of IPRs in Standards

Recently, some in the standards community have suggested reforming how standards bodies handle IPRs, arguing that patent hold-up issues demonstrate that existing IPR policies and traditional FRAND licensing commitments no longer work. In considering reform in this area, it is vital to keep in mind the scope of the problem, the mechanisms for resolving it, how reforms might tilt the playing field, how companies in practice negotiate licenses for IPRs needed for standards, and the cost impact on standards participants.

Panelists: Jeffrey M. Butler, Jones Day Prof. Damien Geradin, Howrey, Brussels, Tilburg University, The Netherlands Patricia Martone, Ropes & Gray Richard S. Taffet, Bingham McCutchen

9:45 – 10:10 Break

SESSION 6: Patents Concurrent Session

Friday, 10:10 AM – 1:15 PM

10:10 – 11:00Japanese Patent Law Developments

Moderator: Prof. Martin Adelman, George Washington University Law School

Speakers: Masayuki Shinohara, Assistant Director, Japan Patent Office

The Japan Patent Office Initiative for Work Sharing Among IP Offices

A Coordinated Effort to Increase the Quality of Examinations, to Reduce the Costs to Applicants and the Workloads of IP Offices with features such as Common Application Format, Electronic Priority Document Exchange, Dossier Access System, Japan Fast Information Release Strategy and Patent Prosecution Highway.

Hon. Ken Asai, Judge, IP High Court, Japan

Strict Scrutiny? The IP High Court of Japan’s Judicial Review of the JPO Decisions

Are the criticisms true that the IP High Court of Japan is too strict and unfriendly to patent holders? What does a statistical analysis demonstrate?

Panelists: Charles Eloshway, Attorney-Adviser, Office of International Relations, U.S. Patent and Trademark Office, Arlington, VA John Pegram, Fish & Richardson Peter Vermeij, Vice President, European Patent Office, DG 2, Munich

Raising the Bar

11:00 – 11:45 Willful Patent Infringement: Seagate and its aftermath

An analysis of the development of the willful infringement standard and associated adverse inference related to the failure to rely upon an opinion of counsel. A look at the law before In re Seagate, what the Federal Circuit did in Seagate, and how district courts are answering the numerous questions raised by Seagate.

Moderator: John Pegram, Fish & Richardson

Speakers: John Pegram, Fish & Richardson Brian Nolan, McDermott, Will & Emery, New York

Willful Infringement and Attorney Opinions after Seagate – What’s next?

Panelists:

Q. Todd Dickinson, Vice President and General Patent Counsel, General Electric, Fairfield Kenneth Herman, Ropes & Gray Edward W. Murray, Managing Counsel, Intellectual Property Litigation, Merck & Co., Rahway

11:45 – 12:30 Medical Use Claims: A comparative analysis

Moderator: Prof. Rochelle Dreyfuss, New York University School of Law

Speakers: Jeremy Brown, Howrey, London

Medical Use Claims: New Dawn in Europe?

Non-patentability of medical methods in Europe has required ingenuity from the EPO and national Courts to provide protection for new uses of known therapeutically active products. But Courts have differed and protection is inconsistent. EPC 2000 came into effect on December 13 2007. Might it bring better and consistent protection?

Paul Tauchner, Vossius and Partner, Munich

A German Perspective on Medical Use Claims: nullity and infringement courts

John Richards, Ladas & Parry

The Written Description Requirement to Support a Medical Use Claim: A Comparative Analysis

The Canadian sound prediction requirement; data requirements in East Asia; the EPO’s need for correlation to a “disease”, and the U.S. Rasmussen decision.

12:30 – 1:15 European Union’s Agenda for Patents

Moderator:

Speakers: Harrie Temmink, Industrial Property Unit, DG Internal Market and Services, European Commission, Brussels

Towards an EU-wide jurisdiction on patent litigation

The Commission Communication "Enhancing the patent system in Europe" of April 2007 suggested the creation of an EU-wide patent jurisdiction combining features both of EPLA and a Community jurisdiction. This court should have competence for actions related to infringement and invalidity of European patents and future Community patents. Since then the Council has made considerable progress. Could an agreement be reached in the second half of 2008. What are the main features of the system that is currently being discussed?

David J. Kappos, Vice President and Assistant General Counsel, Intellectual Property Law, IBM Corp.

Soft IP and the Possibility of Finally Realizing a Pan-Europe Patent

Last year an EPO-convened conference in Munich included a section called "Scenarios for the Future". An envisioned "blue sky scenario" featured the concept of a new kind of IP that would feature strong protection like today's patent right, but instead of an injunction as the ultimate relief for infringement, would instead employ licensing, with licenses made available to all requestors. This talk expands on the blue sky scenario and the concept of soft-IP, filling in the details to advocate a new kind of license-of-right patent having pan-European scope and cost effective features."

Panelists: Prof. Alain Strowel, Covington & Burling, Saint-Louis University, Brussels David Perkins, Milbank Tweed Hadley & McCloy LLP, London Hon. Robert van Peursem, Vice President, District Court The Hague, The Netherlands

SESSION 7: Trademark Law Concurrent Session

Friday, 8:30 AM – 1:15 PM

8:30 – 9:50 Trademark and Design Law Developments in the EU: European Commission’s Agenda, European Court of Justice, Court of First Instance and OHIM

Moderator:

Speakers: David Keeling, Board of Appeal, OHIM, Alicante

Design and Trademark Developments in OHIM

William Robinson, Freshfields Bruckhaus Deringer, London

The Court of Justice and Trademarks

Harrie Temmink, Industrial Property Unit, DG Internal Market and Services, European Commission, Brussels

Are Legislative or Other Changes Needed in Trademarks or Designs?

The Trade Mark Directive was adopted in 1989 and the Community Trade Mark has been operational since 1996. Is it not about time for an exhaustive evaluation of both the harmonized national trade mark regime and the Community Trade Mark, as well as the interaction between both systems? And what about the harmonized and unified design systems?

Panelists:

Prof. David Llewelyn, Kings College London, External Director, IP Academy, Singapore Prof. Spyros Maniatis, Queen Mary, University of London

9:50 – 10:40The Right of Publicity: Developments in the United States and Europe

Moderator: John Michael Richardson, Arbitrator and Mediator

Speakers: Prof. Gillian Black, University of Edinburgh

Recent Developments in Publicity Rights in the UK: Where Now for Celebrities?

Publicity Rights in the United Kingdom are protected through an ad hoc range of doctrines resulting in the lack of any principled development. In the recent House of Lords decision in Douglas v. Hello, the theoretical and doctrinal bases for the various opinions and result leaves a number of critical questions unanswered.

Prof. Marshall Leaffer, Indiana University School of Law

Copyright Preemption and the Right of Publicity

Courts applying statutory copyright preemption of the right of publicity have produced a body of incoherent case law. Several recent cases have achieved the proper preemption outcome. A method is possible where courts can make compatible state publicity law and federal copyright law.

Jonathan Faber, President and CEO, Luminary Group

The Evolution Continues: Recent Right of Publicity Legislation and Litigation

The Right of Publicity has received interesting legislative and judicial attention in the United States producing high-profile cases and legislative proposals and amendments. Key issues include the role of domicile, debtor-creditor relationships and retroactivity.

Panelist: Prof. Lionel Bently, Cambridge University

10:40 – 11:10 Break

11:10 – 12:25 Protection for Famous Marks and Well Known Marks

What is the current state of the law in the U.S.? Is the Second Circuit decision in the Bukhara Grill case an indicator for the future or a precedent that is weakened by the fact that the plaintiff originally had a mark in the U.S. and then abandoned it? Why did it take 16 months after oral argument to decide the case? Considering the Second Circuit’s acknowledged conflict with the thCircuit decision in Grupo Gigante, is forum shopping a likely result? Which circuit is right on protection for famous marks? What role is there for state law? What are other countries doing with regard to famous and well know marks? What strategies are available to a mark owner to receive greater U.S. and global protection for its famous mark?

Moderator:

Speaker: Michelle Marsh, Kenyon & Kenyon

Panelists: Prof. Barton Beebe, Benjamin N. Cardozo School of Law, Yeshiva University Prof. Robert Brauneis, George Washington University Law School Prof. Robert Burrell, University of Queensland, Brisbane Prof. Jane Ginsburg, Columbia Law School Prof. David Llewelyn, Kings College London, External Director, IP Academy, Singapore Jonathan Moskin, White & Case

12:25 – 1:15 Event Driven Marks and “Ambush” Marketing: protection of a special’s event’s (e.g. Olympics) mark and protection against unofficial businesses deriving official-sponsor-like benefits

Moderator: Jeffrey M. Butler, Jones Day

Speakers: Peter Ruess, Freshfields Bruckhaus Deringer, Dusseldorf “Ambush” Marketing and Risks for “Event Marks: Do we need more protection?

Special events such as sports championships are expensive and sponsors pay huge sums for what they expect to be more or less exclusive rights to refer to the event in their advertising. Nonofficial competitors creatively find ways to associate themselves with the special event. In Germany, these issues with regard to World Soccer Championship for FIFA have been litigated. Should trademark law protect the sponsors? If not, should stronger protection be obtained through amending the trademark law or enacting sui generis legislation aimed at protecting the special events.

Prof. Coenraad Visser, University of South Africa, Pretoria

The Soccer World Cup 2010: Special Event and Ambush Marketing Protection in South Africa

South Africa hosts the 2010 Soccer World Cup. Recent S.A. passed legislation to give special protection to the Word Cup 2010 and its sponsors, including protection against “ambush” marketing.

Prof. Doris Long, John Marshall School of Law

Ambush Marketing and China

Ambush marketing" is already in full swing in China. Yet given the special regulations which China as already enacted, and the heightened attention paid to the protection of Olympic symbols, ambush marketers may find their efforts stymied by some novel approaches to the problem. Whether such approaches ultimately prove successful remains to be seen.

Panelists: Phillip Johnson, Barrister, 7 New Square, London Jeffrey D. Neuburger, Thelen Reid Brown Raysman & Steiner LLP (invited)

SESSION 8: Copyright Law Concurrent Session

Friday, 8:30 AM – 1:15 PM (Room 311)

Moderator:

8:30 – 9:25 Orphan Works legislation in the U.S. and around the World

Moderator:

Speakers:

Prof. Willem Grosheide, University of Utrecht

Orphan Works Regulation: The European Perspective

Oliver Metzger, U.S. Copyright Office, Wash. D.C.

Orphan Works Legislation in the U.S.

The U.S. Copyright Office and Congress over the past three years have been engaged in extensive efforts to formulate a legislative solution to the problem of orphan works. What were the issues? What were the problems? How do the current proposals in Congress deal with those issues and problems? Are any of them likely to succeed?

Panelists: Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, European Commission, Brussels Jule L. Sigall, Senior Policy Counsel/Copyright & Trademark, Microsoft Corp., Redmond Steven J. Metalitz, Mitchell Silberberg & Knupp, Wash. D.C.

9:25 – 10:55 Copyright Developments in Canada, Australia and New Zealand

Moderator: Steven J. Metalitz, Mitchell Silberberg & Knupp, Wash. D.C.

Canada:

Speakers: Prof. Daniel Gervais, Acting Dean of Common law, University of Ottawa

Recent Developments in Canadian Case Law

Justice William Vancise, Chairman, Copyright Board of Canada

What are “adequate reasons” in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?

An examination of the confusion created by courts interfering with a decision of the Copyright Board on the grounds of unreasonableness or procedural fairness, and whether there is an obligation to explain how the Board arrived at the decision made within its sphere of expertise. A judicial tendency may arise to use procedural fairness to obviate the deference owed to statutory tribunals in the same way courts used jurisdiction to permit them to set aside decisions they did not agree with in the 70's and 80's. This coupled with a lessening of the deference owed by courts to decisions of tribunals by abolishing the “patently unreasonable” standard and substituting the reasonableness standard has the potential to lessen the independence of these statutory decision makers and permit unnecessary meddling by the courts.

Steven J. Metalitz, Mitchell Silberberg & Knupp LLP, Wash. D.C.,

Why Canada should be put on the Special 301 Priority Watch List for 2008.

Howard Knopf, Counsel, Macera & Jarzyna LLP, Ottawa,

How Canadian Copyright Law is already Stronger and Better than U.S. Law, and Why the U.S. Should Look in the Mirror Rather than at its “Special 301” Watch List

Panelist: Richard Pfohl, General Counsel, Canadian Recording Industry Ass’n, Toronto

Australia

Speaker: Prof. Anne Fitzgerald, Queensland University of Technology Law School, Brisbane

Recent Developments

New Zealand

Speaker: Prof. Susy Frankel, Victoria University of Wellington, New Zealand

Recent developments: Including why the Digital Copyright Bill 2006 is unlikely to become law and summary of the “Parallel Importing Review: Impact on creative industries.”

Panelists: Prof. Peter Black, Queensland University of Technology Law School, Brisbane Prof. Robert Burrell, University of Queensland, Brisbane

10:55-- 11:20 Break

11:20 – 1:15 The Challenges and Opportunities of Copyright in the Web 2.0 World

Moderator:

Morton David Goldberg, Cowan, Liebowitz & Latman, P.C.

What are the opportunities and challenges for copyright owners in the Web 2.0 world? How are ad-funded business models affecting the economics of content creation and online distribution? What is the effect of the emergence of user generated sites that are sharing revenue with the creator? What role do Creative Commons licenses play? To what extent are online intermediaries responsible for the infringing activities of their users? Where do the U.S. and EU rules overlap on these issues, and where do they diverge?

Speakers: Marty Hansen, Covington & Burling, Wash. D.C.

Web 2.0: A Brief Overview of Issues and Challenges

Prof. Brian Fitzgerald, Queensland University of Technology Law School, Brisbane

Web 2.0: Creator Utopia, Platform Owners Paradise or Still the Same?

Will new music and content distribution models that have been employed in the Web 2.0 environment provide new opportunities for creators or other stakeholders?

Alexander Macgillivray, Intellectual Property and Product Counsel, Google, Inc., Mountain View

YouTube's Content Identification Systems and the new licensing models they enable.

Donald B. Verrilli, Jr., Jenner & Block, Wash. D.C.

Panelists:

Prof. R. Anthony Reese, New York University School of Law (visiting) Thomas C. Rubin, Associate General Counsel, Microsoft Corp., Redmond Prof. Mary Wong, Franklin Pierce Law Center

1:15 – 2:30 Lunch (Platt Atrium and Faculty Reading Room 430)

Friday Afternoon, March 28 Three Concurrent Sessions

2:30 PM – 6:30 PM

SESSION 9: Patent Law and Parallel Imports Concurrent Session

(Friday, 2:30 PM – 6:30 PM)

2:30 – 3:30 Patent Exhaustion: A Comparative Analysis

On January 16th, the Supreme Court heard oral argument on the scope of patent exhaustion in Quanta Computers, Inc. v. LG Electronics, Inc. LG had licensed Intel to use LG’s patents for Intel’s products but the patent license explicitly did not cover the use of those products by Intel’s customers (such as Quanta) in combination with non-Intel products. LG sued Quanta for patent infringement. Quanta argued that LG’s patent rights had been exhausted by Intel’s authorized sale, notwithstanding the limitation set forth in license. The Court of Appeals for the Federal Circuit disagreed and held that there was no exhaustion. The decision of the Supreme Court could come soon but at least by the end of June.

Moderator:

Speakers: Lewis Clayton, Paul Weiss Rifkind, Wharton & Garrison LLP

Dr. Johann Pitz, Vossius & Partner Jennifer Reda, Fitzpatrick, Cella, Harper & Scinto Christopher Stothers, Milbank Tweed Hadley & McCloy LLP, London

Panelists: Shimako Kato, Abe, Ikubo and Katayama, Japan

3:30 -4:00 Break

4:00 – 5:00 Injunctive Relief in the United States: eBay and its aftermath; effect on ITC proceedings

Moderator: Prof. Martin J. Adelman, George Washington University Law School

Panel Discussion: Hon. Randall R. Rader, Court of Appeals for the Federal Circuit Daniel B. Ravicher, President and Executive Directive, Public Patent Foundation Herbert F. Schwartz, Ropes & Gray LLP Prof. John R. Thomas, Georgetown University School of Law

5:00 –6:30 Parallel Imports

Moderator:

Speaker: Prof. Valentine Korah, University College London (Emeritus)

Panelists: Christopher Stothers, Milbank Tweed Hadley & McCloy LLP, London John Temple Lang, Cleary Gottlieb Steen and Hamilton, Brussels Others to be announced

SESSION 10: Copyright Law Concurrent Session

Friday, 2:30 PM – 6:30 PM

2:30 – 3:45 A. Copyright Law Exceptions and Limitations

The development agenda issues, library proposals, fair use, de minimus use, the role of the three-step test, new legislative developments

Moderator:

Prof. Justin Hughes, Benjamin N. Cardozo School of Law, Yeshiva University

Speakers: Tamir Afori, Deputy State Attorney, Civil Dept., State Attorney’s Office, Ministry of Justice Israel

"Fair use" in Israel's new Copyright Act

Israel's copyright law has a new "fair use" clause. The legislative process sought and produced a compromise between certainty and flexibility.

Prof. P. Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam

Conceiving an International Instrument on Limitations and Exceptions to Copyright

What are the policy options and modalities for framing an international instrument on limitations and exceptions to copyright within the treaty obligations of the current international copyright system? How much room do international treaty obligations leave for such an initiative? What are the options for the design of such an instrument, including its institutional home?

Hon. Marybeth Peters, Register of Copyrights, U.S. Copyright Office, Wash. D.C.

Prof. Pamela Samuelson, University of California, Berkeley

Rules vs. Standards in Crafting Copyright Exceptions and Limitations

The well-known advantages of rules include their greater predictability and precision, while standards are more flexible and adaptable over time. The copyright exceptions and limitations (L&E) of many nations tend to be rule-like, while U.S. copyright exceptions and limitations are mixed, with fair use serving as the preeminent flexible standard which often bemoaned as too unpredictable. This talk will consider how copyright L&E rules might be made more flexible and copyright L&E standards might be made more rule-like so that copyright can adapt more readily to new challenges without losing predictability.

Panelists: Mihály Ficsor, Director, Center for Information Technology and Intellectual Property (CITP), Budapest Prof. Jane Ginsburg, Columbia Law School Tilman Lüder, Head of Unit, Copyright and Knowledge-based Economy, DG Internal Market and Services, Brussels Luis Villarroel Villalon, Legal Advisor, Ministry of Education, Chile, Vice Chair, WIPO Standing Committee on Copyright and Related Rights (invited)

3:45 – 4:40 B. Free Speech and Copyright and Trademark Issues in the US and around the World

Moderator: Prof. Sonia Katyal, Fordham University School of Law

Speakers: Prof. Robert Burrell, University of Queensland, Brisbane

Exporting Controversy: Free Speech and Trade Agreements

It has recently been suggested that freedom of expression should be treated as a trade issue, in part so as to ensure that future trade agreements are more ‘balanced’. This paper will argue that calls for freedom of expression to be treated in this way are unlikely to be well-received in partner countries, even amongst those who would otherwise be sympathetic to the aim of reducing censorship.

Prof. Spyros Maniatis, Queen Mary, University of London

Mr Miss World and Haute Diggity Dog: Parody, Freedom of Speech, and Trade Mark Law

What are the tensions between trade mark rights and freedom of speech? A look at two cases from both sides of the Atlantic.

Prof. Rebecca Tushnet, Georgetown University School of Law

Commercial Speech and Intellectual Property Law

The U.S. federal judiciary has become increasingly conservative, and specifically, increasingly pro-business. While this was good news for copyright owners in Eldred, it may have some surprising effects on free speech doctrine. If commercial speech receives heightened constitutional protection, trademark owners may find expansive trademark claims harder to maintain; and a property-like conception of copyright may even bolster the case against removing works from the public domain, as in the URAA restoration case.

Panelist: Prof. Pamela Samuelson, University of California, Berkeley Others to be announced

4:45 – 5:05 Break

5:05 – 6:30C. The Role, Effectiveness and Issues in Infringement Actions against Individual P2P Downloaders; Recent Legislative Initiatives Aimed at Downloaders

Moderator: Prof. Hugh C. Hansen, Fordham University School of Law

1. What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

Speaker: Michael Scheslinger, Greenberg Traurig LLP, Wash. D.C.

Panelists: Ray Beckerman, Vandenberg & Feliu LLP Prof. Brian Fitzgerald, Queensland University of Technology Law School, Brisbane Prof. Jane Ginsburg, Columbia Law School Prof. Mary Wong, Franklin Pierce Law Center

2. Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Speaker: Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs, Recording Industry of America, Wash. D.C.

Panelists: Ray Beckerman, Vandenberg & Feliu LLP Prof. Peter Black, Queensland University of Technology, Brisbane Prof. Pamela Samuelson, University of California, Berkeley Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels

3. What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Speaker: Dr. Volker Kitz, Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne

Private Peers – What Role Should Privacy Law Play in Learning the Identities of P2P Users? The European Case

The “Data Retention Directive” obliges access providers throughout Europe to store dynamic IP addresses. The ECJ, however, decided that privacy law might prevent right holders from obtaining this data. Where is the right balance between IP enforcement and privacy?

Panelists: Ray Beckerman, Vandenberg & Feliu LLP Fabienne Brison, Howrey LLP, Free University of Brussels Eddan Katz, International Affairs Director, Electronic Frontier Foundation, San Francisco Barbara Norcross-Amilhat, Principal Administrator, Copyright and Knowledge- Based Economy, DG Internal Market and Services, European Commission, Brussels Richard Pfohl, General Counsel, Canadian Recording Industry Ass’n, Toronto Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels

SESSION 11: International Trade, Asia Concurrent Session

Friday, 2:30 PM – 6:30 PM

2:30 – 3:25Current Issues with regard to the Development Agenda

Moderator: Prof. Coenraad Visser, University of South Africa, Pretoria

Speakers: James Love, Director, Knowledge Ecology International, Wash. D.C.

The overlooked TRIPS flexibility: the elimination of exclusive rights

Under TRIPS Are Exclusive Rights required in IP law? A Look at eBay and TRIPs Art. 44, para. 2 of 44.

Evelyn Montellano, Tauil, Chequer & Mello Advogados, affiliated with Thompson & Knight LLP

Brazil and TRIPs: Does its Patent Protection Measure UP?

Panelists: Prof. Martin J. Adelman, George Washington University Law School Prof. Johanna Gibson, Queen Mary, University of London Weerawit Weeraworawit, Deputy Secretary General, National Human Rights Commission, Kingdom of Thailand Hon. Randall R. Rader, Court of Appeals for the Federal Circuit

3:25 – 4:25 Ad Hoc Multilateral Agreements: the Way Forward? The proposed Anti-Counterfeiting Trade Agreement (“ACTA”): its scope, rationale, possible duplication in other areas, and effect on the role of WIPO and other multilateral organizations

Speaker: Prof. Victoria Espinel, George Mason University School of Law Eric H. Smith, Greenberg, Traurig LLP, Wash. D.C. James Love, Director, Knowledge Ecology International, Wash. D.C.

Panelists: Eddan Katz, International Affairs Director, Electronic Frontier Foundation, San Francisco

4:25 – 4: 45 Break

4:45 – 6:30IP Developments in China

Moderator:

Speakers: Steven Tepp, Policy Planning Advisor, U.S. Copyright Office, Wash. D.C.

Recent Copyright Developments

Prof. Peter K. Yu, Drake University School of Law

Will IP Protection Increase in China as a Result of Hosting the Olympics?

Prof. Doris Long, John Marshall School of Law

Trademarks and the Beijing Olympics: Gold Medal Issues

Panelists: Marty Hansen, Covington & Burling, Wash. D.C. (tentative) Eric H. Smith, Greenberg Traurig LLP, Wash. D.C. Prof. Wang Qian, East China University of Politics and Law

Reception (Platt Atrium) (to 8:00 PM)