Introduction Theories of intellectual property (IP) tend to come in two varieties: “normative” theories that concern themselves with evaluating the extent to which IP rights are (or are not) justified, and “positive” theories that focus on explaining the origins or effects of such rights. Yet the distinction between these is far from airtight, as a […] Continue Reading >
Patents’ “Self-Consistency” Question: Diversion and Blocking Under a Patent-Racing Model
Patents’ “Self-Consistency” Question: Diversion and Blocking Under a Patent-Racing Model
Introduction The United States patent system is commonly justified by its provision of economic incentives for innovation.[1] But this justification comes with constant concern that the social benefits of innovation that the patent system stimulates might not outweigh the sum of the system’s various social costs, including potential deadweight loss associated with supracompetitive prices,[2] interference […] Continue Reading >
IP’s Pluralism Puzzle
A Law and Political Economy of Intellectual Property
Introduction At the core of intellectual property (IP) law lies a fundamental question of political philosophy: Can any argument justify the state’s grant of private property rights in intangibles?[1] To this question, scholars have responded that IP rights can be justified by natural rights,[2] efficiency,[3] personality,[4] autonomy,[5] or good consequences, such as strengthening democracy.[6] Although […] Continue Reading >
Patents’ “Self-Consistency” Question: Diversion and Blocking Under a Patent-Racing Model
Introduction For more than 40 years, the Federal Circuit required courts evaluating whether a claimed design was obvious to use a rigid and narrow set of criteria that were disconnected from design practice and almost invariably led courts to the conclusion that the claimed design was patentable. Under the former Rosen–Durling test, a court could […] Continue Reading >
Seeing the Dead: Marks, Meaning and the Haunting of American Trademark Law
[Introduction] The retirement of trademarks such as “Uncle Ben” and “Aunt Jemima” during the fulcrum of the Black Lives Matter movement prompted scholars to reconsider how trademark law protected various marks that perpetuated images built on a terrifying scaffold of racist imagery.[1] In many ways, though, this reckoning stopped without a full accounting of trademark’s […] Continue Reading >