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14 Wash. J. L. Tech. & Arts 1 (2018-2019)

handle is hein.journals/washjolta14 and id is 1 raw text is: WASHINGTON JOURNAL OF LAW, TECHNOLOGY & ARTS VOLUME 14, ISSUE 1 FALL 2018 REMARKS ON THE PROBLEM OF SCOPE IN IP* Mark P. McKenna** Cite as: 14 Wash. J.L. Tech. & Arts 1 (2018) http://digital.law.washington.eduldspace-law/bitstream/handle/1773.1/1860/14WJLTAOO1.pdf TABLE OF CONTENTS Introduction .............1........... ...............1 I. Claiming Methodology .............. ..... ..........5 A. Design Patent ....................................5 B. Trademark ....................................13 C. Copyright .................................18 II. Scope......................................23 III. Costs of Difficulties With Claiming and Scope .........28 Conclusion ................................ .....32 INTRODUCTION As I contemplated the focus of this conference, issues about the nature of the rights that are the subject of a deal stood out to me. A good deal of my recent work has focused on challenges in determining the scope of IP rights. And since those rights are the inputs to various kinds of transactions-or, perhaps even more importantly, ability to assess the scope of a right affects whether a transaction is needed-I'm going to focus here on the relationship between the scope of IP rights and potential IP transactions. There is already quite a bit of scholarship on the importance of clarity of property rights, both in giving notice to others as to how to avoid the rights and in helping structure transactions. For * D 2018 Mark P. McKenna. ** John P. Murphy Foundation Professor of Law, Notre Dame Law School. These remarks were given as the keynote talk at The Art and Science of the Deal Conference at the University of Washington School of Law. Thanks to Zahr Said for the invitation, and to Jeanne Fromer, Mark Lemley, Rebecca Tushnet, and Jessica Silbey for helpful discussions of the ideas in these remarks.