29 October 2008

IP and Transactional Skills -- Two Great Tastes Which Taste Great Together

In passing this morning, I mentioned a post from Shubha Ghosh, who's guest-blogging over at The Conglomerate. Ghosh writes concerning the overlap between intellectual property and transactional skills:
There are five areas where intellectual property and transactional legal skills overlap: (1) formation of a business, (2) licensing, (3) employment, (4) identifying sources of transactional value, and (5) securities disclosure and due diligence. Transactional skills are most critical at the formation stage of a business. The formation stage also raises numerous intellectual property issues: trademark registration and protection, patenting, the identification and clearance of IP rights. Businesses, at various stages, have to decide between making or buying, a decision which affects the negotiation and drafting of licenses. The internal organization of a business also hinges on employment decisions, the choices of whether to use independent contractors or employees and the terms on which these parties are hired. The choice of type of worker and terms may be shaped by the intellectual property strategies of the firm. Finally, intellectual property is a source of transactional value within a firm, and the identification of IP sources of value would affect disclosure requirements and the due diligence of a seller and purchaser of a firm's securities and other assets.

These five practical areas of overlap translate into a distinct set of transactional skills that can be effectively conveyed through the teaching of intellectual property. The first is identifying business assets. Understanding intellectual property law and institutions is critical in identifying the sources of value for a business and the types of business assets which can be the basis for realizing value. Identifying what is a patent, copyright, and trademark as well as what can be protected by patent, copyright, or trademark is foundational for recognizing and valuing business assets. The second skill is understanding how background common and statutory law serve as defaults for contractual negotiation in some instances and as immutable rules in others. In other words, law shapes the contours of a business asset and affects its value. The final skill is negotiating rights over intellectual property in order to realize and transfer these sources of value and to avoid litigation over these assets. Intellectual property provides a basis for teaching business planning and organization skills.

I think that's dead-on. What's more, I'd suggest that the street runs the other way as well. While Ghosh, as an academic, is understandably concerned with the utility of intellectual property to teach transactional skills, I think that transactional skill-building across multiple disciplines is a useful means to teach core intellectual property knowledge.

What he's getting at, if I'm understanding correctly, is that the processes by which the teaching of legal knowledge is separated from the building of practical transactional skills needs to be rethought. To take things a step further, though, this means not just integrating transactional work into academic work, but also teaching academics through practical methods, as opposed to approaching these solely from a traditional law school curriculum.

While IP work is certainly a knowledge-intensive area of law, it is at its heart about problem-solving and value creation. Starting from a "problem" like the business formation Ghosh mentions allows for greater and more meaningful exploration of IP law than does a casebook and lecture approach. Practical exploration doesn't need to supplant traditional methods, but it should figure into teaching much more than it did when I studied (and, I suspect, more than it does currently).

I learned more about IP law through my work with technology entrepreneurs than I did from my coursework; most practicing attorneys would probably relate similar experiences. The value of the practical approach to core knowledge shouldn't be just an open secret amongst practitioners. Let's build better practitioners by letting law students in on our secret.

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