In June 2023, Julia Laurence, JD ’24 (BA ’17), and Victoria Fang, JD/MS ’24, attended U.S. Supreme Court oral arguments in Jack Daniel’s Properties, Inc. v. VIP Products LLC, a much-watched case implicating trademark law, parody, and free speech. Laurence and Fang, part of the Juelsgaard Intellectual Property and Innovation Clinic, submitted an amicus brief on behalf of 30 trademark law professors arguing that a ruling in favor of trademark holder Jack Daniel’s could stifle free speech rights. At issue was whether VIP Products’ “Bad Spaniels” parody dog chew toy was speech protected by the First Amendment or trademark infringement.
The Court ruled unanimously in favor of the whiskey maker’s trademark rights—the opposite of what the clinic students argued—but attending the oral arguments provided the opportunity of a lifetime and a chance to hear the justices discuss arguments put forth in their brief and those of other amici. This was one of several trips clinic founding director Phillip Malone has led to the Supreme Court with students to observe arguments in cases where they submitted amicus briefs.
Making a difference where IP law, technological developments, and public policy meet has been the mission of the Juelsgaard Clinic since its founding in 2013, thanks to a generous gift from Stephen Juelsgaard, JD ’82, a former general counsel and senior executive at Genentech Inc.
As the clinic celebrates its 10th anniversary this year, Malone can reflect on dozens of other amicus briefs—more than 25 to the U.S. Supreme Court plus numerous others to lower courts—that have helped advance technology law and policy while training the newest generation of IP and technology lawyers. The Juelsgaard Clinic, one of 11 within the Mills Legal Clinic, offers a number of other avenues for students to dive into hands-on, cutting-edge IP and technology advocacy—whether providing public comments and testimony in federal agency rulemaking proceedings, counseling nonprofits, drafting white papers, or litigating cases.
“A core mission of the clinic is to look broadly at the trajectory of technology and IP developments in areas with the potential to reshape society, and then to take a really thoughtful perspective on what the best outcome should be for innovation and for the public interest,” Malone says. Prior to launching the Juelsgaard Clinic,
Malone was a senior attorney with the U.S. Justice Department’s Antitrust Division and directed Harvard Law School’s Cyberlaw Clinic.
“If you’re a lawyer writing a brief on behalf of one of the parties to a case, your goal is to win the case, so you make the best arguments for your client, but you’re not necessarily looking out for what is best for the public interest,” he says. “In clinic, we have the luxury of finding a place in the middle, or making arguments in an amicus brief for a sensible decision that the judges might not hear from the parties. So, it is a wonderful opportunity for students to think critically about what the ‘right’ answer is rather than just the right answer for a particular client.”
Tech and Public Interest
Recently, a good portion of the clinic’s public interest-focused deliberation has been trained on artificial intelligence and its capacity for both leveling the playing field and creating inequities. Students in the Spring 2023 clinic worked on a set of comments to the Federal Trade Commission and the Consumer Financial Protection Bureau related to the use of artificial intelligence and algorithms in tenant screening.
“Increasingly, companies and landlords use AI to help determine who might be a ‘good tenant,’” Malone explains. “On behalf of a couple of tenant rights organizations, we prepared a set of comments to the FTC and CFPB that focused on what these tools were, how they worked, and some of the ways they could amplify biases and other discrimination in housing.”
Lexie Shah, JD ’24, together with Afi Blackshear, JD ’23, and Sam Gensburg, JD ’24, researched and drafted the comments. “Few prospective renters know that code, rather than an actual human, can be the deciding factor in whether they have a roof over their head,” Shah says. “We turned to grassroots organizations who see the realities of tenant screening play out, and it was through this process that we learned how technology has harmed prospective tenants, particularly low-income applicants of color.It was gratifying to uplift denied tenants’ voices in a comment that will hopefully influence the FTC and CFPB to mandate more transparency in the industry.”
A Nod From SCOTUS in a Seminal Case
Among other highlights of the clinic’s first decade, Malone cites the amicus briefs his students submitted in Google v. Oracle, the landmark software copyright and fair use case that was originally filed in 2010 in the Northern District of California and culminated in a Supreme Court decision in 2021.
“This was one of the most important Supreme Court copyright cases in the last 30 years, and we represented an incredible group of prominent and important computer scientists,” Malone says. “The case went from the district court to the Federal Circuit twice, and then up to the Supreme Court. We filed three separate amicus briefs in the course of that journey, one in the last stage at the Federal Circuit, then one urging the Supreme Court to grant cert and take the case, which it did, and then one on the merits to the Supreme Court. When Justice Breyer cited our brief in the majority opinion, it was really a high point, and the decision was a huge win for fair use, competition, and innovation in software.”
Malone points to a project from the clinic’s early years as another of its most important. Marta Belcher, JD ’15, and John Casey, JD ’15, students in the 2014 clinic, researched, drafted, and launched “Hacking the Patent System: A Guide to Alternative Patent Licensing for Innovators.” The guide was designed to help startups and innovators understand and consider nontraditional approaches to patent licensing to counteract aspects of the patent system that arguably hinder innovation and stifle creativity. The guide continues to be widely distributed and promoted.
“We wanted to help companies understand how they could ‘open source’ their patents to use their intellectual property for good,” says Belcher, who continues to promote open source as general counsel at open source R&D company Protocol Labs, president of the Filecoin Foundation, and special counsel at the Electronic Frontier Foundation. “I have been blown away by how often our guide has been referenced and used, even still today. It is a testament to the impact of the clinic.”
When Jason Reinecke, JD ’18, was a student in the clinic, he was part of a team that drafted an amicus brief to the U.S. Court of Appeals for the Federal Circuit, asking an en banc panel to review its jurisprudence relating to patent assignor estoppel, an equitable rule that prevents the seller of a patent from later claiming it is invalid. The court denied the rehearing, but the arguments in the brief piqued the judges’ interest.
“The court concluded that while the doctrine might be worth revisiting, this case in front of it was not a proper vehicle because the relevant party failed to adequately address the issue,” says Reinecke, now a professor at Marquette University Law School whose research focus remains intellectual property law and innovation. “But it was still extremely exciting because a federal court took the time to read and specifically address our brief in its opinion and signaled that we had raised some valid issues. In subsequent years, similar briefs continued to be submitted by Juelsgaard Clinic students in other assignor estoppel cases. Ultimately the Supreme Court granted certiorari in a relevant case and modified the doctrine in several respects. It was fun and rewarding to watch a brief I worked on make such a difference.” SL