Law School's Top-Ranked IP and Copyright Practice Grows Even Stronger

Mark Lemley (BA '88) leaves UC Berkeley to join Stanford law faculty.

Photo: Steve Gladfelter

Mark A. Lemley (BA '88) has focused much of his professional career on the intersection of intellectual property and antitrust law. Lemley joined the Stanford Law School faculty this summer as William H. Neukom Professor of Law as well as director of the Stanford Program in Law, Science & Technology. In his mind, lawyers can't practice in one field without taking the other into account. "People do it all the time," he said, "but I think it's a mistake."

Lemley should know. He has been involved in some of the most challenging legal cases in this area of the law. While working as a consultant to the Department of Justice on the Microsoft Corp. case, Lemley found himself in that fuzzy area of the law. The software giant was asserting that its copyright allowed the company to prevent computer users from changing the desktop. The government countered that Microsoft unfairly prevented customers from using competing software. "It was definitely a gray area," Lemley said. "It's not clear how far copyright extends, or even how antitrust interacts with that."

Lemley came to Stanford from the University of California at Berkeley School of Law (Boalt Hall), where he was a director of the Berkeley Center for Law and Technology. He says the move was made easier by geography: His wife, Rose Hagan, is trademark counsel for Google Inc. in Mountain View, California-a long commute from Berkeley. And Stanford's location in Silicon Valley, where technological innovation is constantly raising new intellectual property and antitrust issues, intrigued him.

"With Stanford's position in the heart of Silicon Valley, we ought to be the place in the world that people come to when they try to improve technology law," said Lemley.

The 37-year-old Lemley has produced a vast amount of scholarly work in a short period of time: six books and more than 50 law review articles. One of the books is the only comprehensive work addressing the intersection of intellectual property and antitrust law, the two-volume treatise IP and Antitrust Law, which he cowrote with professors Herbert Hovenkamp and Mark Janis at the University of Iowa.

An economics major at Stanford, Lemley had already developed an interest in IP when he enrolled at Boalt. After law school he held a clerkship with Judge Dorothy W. Nelson, United States Court of Appeals for the Ninth Circuit, then worked for Brown & Bain in Palo Alto, California, and Fish & Richardson P.C. in nearby Menlo Park.

Soon, however, Lemley made a career switch. "When I was in practice, I taught a class [at Boalt], and I just loved it," he said. "But it was clear to me that teaching was not something that I could do while practicing law full time. The amount of energy required wasn't going to work with full-time practice." He accepted a professorship at the University of Texas School of Law in 1994 before moving to Boalt in 2000.

Lemley retains an of counsel position at Keker & Van Nest LLP in San Francisco, where he spends about eight hours a week litigating and counseling clients. "In a field like IP that changes all the time, it's important to spend some time understanding what's going on in the real world so you're not out of date."

At Stanford, Lemley is trying to find out why it is that smaller companies and individuals use their patents by licensing them or litigating them more than larger companies. "It may be that the little guys are coming up with the really valuable inventions," he said. "Or maybe they're trolls—they sit and wait under a bridge until someone tries to do the same thing and jump out to demand a toll." The results of the study have important implications for patent law, he stressed: "We'd like to encourage innovation and discourage trolls." Lemley confessed that empirical studies such as the patent research are his favorite: "I like to sit back and look at the data and learn something that no one else knew."

—Mandy Erickson