When Professor Murray called and asked me to speak to this illustrious group, she mentioned that you might like to hear my observations about how IP law has evolved over the course of my career and a little bit about my career itself. It is always nice when someone hands you the speaking topic, so I quickly agreed. Then I realized that I have been a lawyer since the early '80s--longer than some of you have been alive. That is a lot of law to cover. I have also had a pretty unusual career, first as a trade association lawyer, then in private practice, and now as general counsel for an advertising fund serving a huge quick-service restaurant chain. The issues I have had to deal with have been both cutting edge and incredibly mundane. Most of what I know about IP law, I learned on the job. I did not know how to distill it all down for you. Suddenly, I was depressed.
Nevertheless, life is tough and sometimes you get a big dose of bad stuff to deal with. I mean, Marquette's basketball team did not advance to the Sweet 16, and tonight, instead of watching more basketball on television, all you smart law review types have to listen to me, a mere sandwich lawyer, talk about my career and the evolution of IP law.
When I realized that you were sacrificing your Friday night to be here, I knew that I should at least try to prepare a halfway decent presentation, so I started thinking about what to say. Of course, for me, thinking about a presentation and actually putting one together are not always the same.
I was waiting for that "aha" moment. You know--the sudden inspiration that causes the words to just flow onto paper in complete, coherent sentences. I wish that I could say that I have "aha" moments all the time, but sadly, I sometimes have to search for them. Luckily, I travel a lot, and traveling gives me a lot of time to think and read. I should explain that when I am in airports and on planes, I do not do legal work. There is too much risk that others will listen to your conversations or try to read what you are writing or reading. So instead of doing real work, I read magazines and newspapers. Reading the newspaper is actually a habit I picked up in law school. It helped me to remember that the real world still existed as I struggled to understand "The Rule in Shelly's Case," and the whole concept of "penumbras" emanating from various portions of the Constitution. Keeping up with the news actually matters even more to me today. I work for a company that has agreements with some well-known sports figures so I need to read the sports page. Like everyone else, changes in the economy affect my company, which means that I also have to pay attention to business news.
On this particular day, I picked a copy of Newsweek instead of a newspaper. I admit that I bought the magazine to read the article about Barbie turning 50, but the article only put me back into a funk. I mean, I am not much older than Barbie is, but you never see her accessorizing her outfits with reading glasses, as I have to do these days.
Luckily, there was another article in the magazine about a new book on Marbury v. Madison. (1) Did you know that we just passed the 206th anniversary of Marbury v. Madison? Like everyone here, I read this case in law school, but I had actually forgotten why this case is "the most important decision the Supreme Court--and perhaps any court--has ever issued." (2) It was the first time the Supreme Court struck down an act of Congress. It was also the case in which Chief Justice Marshall said quite eloquently that "[i]t is emphatically the province and duty" of the courts "to say what the law is." (3)
There it was--my "aha" moment. I started thinking about what the Supreme Court has said about IP law over the course of my career as a lawyer and how those decisions have influenced or affected my career.
While there have not been a huge number of IP decisions from the Supreme Court, there have certainly been enough for me to keep you here for hours. …