A Look at Litigation in Higher Ed

by Lynn Bell

Universities are no strangers to litigation but traditionally have been defendants of lawsuits rather than plaintiffs. As they become increasingly focused on boosting licensing proceeds from patenting and technology transfer activities, however, some universities are more aggressively asserting patent infringement cases.

“Universities are complex beasts,” says Jacob Rooksby, a student in the Higher Education Ph.D. program. On one hand litigation is risky and expensive. It has intangible costs, as well, such as negative reactions from the public that may ultimately lead to funding cuts or decreases in sponsored research funding.

On the other hand, Rooksby says, “there’s an increased focus on entrepreneurialism in universities. The funding models are changing, and there’s more pressure, both internally and externally, to monetize intellectual assets. The increase in litigation is a manifestation of some of those forces.”

Rooksby finds this phenomenon intriguing and virtually unexplored from a legal and higher education standpoint, which is what brought him back to the Curry School. He has for many years been interested in the intersection of higher education and the law. In 2007, he earned both a J.D. from the Law School and an M.Ed. in social foundations from the Curry School—even though no formal joint degree program exists between the schools.

“It turned out to be a great thing,” Rooksby says, “There was overlap between the two programs and complementary subject areas. You could write a law paper from an education standpoint and an education paper from a legal standpoint.”

He joined the law firm McGuireWoods LLP in Richmond after graduating, where he focused on intellectual property matters and also worked on a cross-disciplinary higher education practice team. In one case the team represented Randolph College of Lynchburg in the lawsuit attempting to stop its sale of artwork from the school’s collection. (He co-authored a commentary on the subject that appeared in The Chronicle of Higher Education). He represented another university in a patent infringement case, which was the final nudge he needed to return to U.Va.

Because he knew exactly what he wanted to study, Rooksby got right to work and has already had a paper on the topic published in The John Marshall Review of Intellectual Property Law. The paper reviews all university patent infringement lawsuits filed from 2009-2010, as well as summarizes the history of university engagement in patenting and technology transfer.

Rooksby’s dissertation, which he successfully defended in February, spanned the history of university patent enforcement since reliable legal records first became available in 1973. He targeted institutions that litigated cases and surveyed their chief research officers about their motivations, decision-making processes, policies, and reflections on the activity. The goal of his research was to expand understanding of complex institutional decision-making concerning university efforts to disseminate and protect knowledge, as well as to contribute data about lawsuit filings that can be used to more fully assess net effects of university technology transfer.

Rooksby has high praise for his experience at Curry, and especially for the faculty members he has worked with most closely: Brian Pusser, Dave Breneman, and Madelyn Wessel (associate general counsel for the university and adjunct faculty member at Curry). “There are no better faculty members I can think of than these three,” Rooksby says.

He has had a new job lined up since December—a tenure-track assistant professor position at Duquesne University School of Law in Pittsburgh, which he will begin this fall. “I will primarily be teaching intellectual property courses, so my work on patent infringement litigation will certainly inform my teaching,” Rooksby says.

“The quantitative and qualitative skills that I built in the Ph.D. program will come in particularly useful as I develop my scholarship,” he adds.  “Unlike in some other fields, empiricism is a rather new movement within legal scholarship, which historically has been primarily normative.  With my training from Curry, I think I will be well prepared to provide much-needed empirical footing for legal and policy arguments.”


Rooksby is also interested in student free-expression issues and published a commentary in The Chronicle of Higher Education last year on “Collegiate Journalism’s Uncertain Future.”