Category Archives: Intellectual Property

Perzanowski and Schultz, ‘Reconciling Intellectual and Personal Property’

Introduction: … Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual […]

Christina Mulligan, ‘Copyright Without Copying’

Abstract: Digital media and software have broken copyright law. Although a consumer experiences the same work when reading a book printed on paper or copied onto an e-reader, the applications of copyright law to traditional and digital media usage have diverged dramatically because digital works are frequently copied in the course of their use. Copyright […]

McKenna and Sprigman, ‘What’s In, and What’s Out: How IP’s Boundary Rules Shape Innovation’

Introduction: … This Article is about a particular aspect of this broad boundary issue, namely the boundaries of utility patent law. What sorts of things are sorted into the utility patent system rather than into the copyright, trademark, or design patent systems? That question matters for patent law, obviously, as some of the current debates […]

Andreas Rahmatian, ‘Brief speculations about changes to IP law in the UK after Brexit’

“It has often been said that the decision of a slight majority of the British people to leave the EU after a referendum that was originally envisaged as advisory will bring fundamental changes to the UK. This is indeed likely to be the case, but at the moment one can only speculate …” (more) € […]

‘Internal and External Accounts of IP Law’

“In a recent post on this blog, Henry Smith asked some important questions about methodological commitments in American scholarship about intellectual property. Henry distinguished between (on one hand) ‘external’ and (on the other hand) ‘internal or interpretivist’ frameworks for studying law. He then noted that, in American IP scholarship, ‘scholars overwhelmingly adopt consequentialist and even […]

Jessica Lai, ‘The changing function of patents: a reversion to privileges?’

Abstract: Since its inception, patent law has had many faces, manifesting different aims and functions. The latest recalibrations of the aims and functions of patent law are striking because – at its core – patent law itself has not changed significantly in this time. This paper examines the chameleon-like nature of the function of patents, […]

‘Patents and the Private-Versus-Public-Rights Distinction’

Are patent rights public or private rights? Generally speaking, patents are privately held, and their enforcement is limited to civil suits brought by their private holders. Hence, in some sense, the answer might seem obvious. But for purposes of addressing issues of separation of powers and the right to a jury trial, the answer is […]

‘Unevenly Cooked: Raw Materials and Fair Use’

Andrew Gilden, Raw Materials and the Creative Process, 104 Georgetown Law Journal 355 (2016). Over the past decade or two, intellectual property scholars have learned to pay attention to the rhetoric that people use when arguing and advocating. In particular, many scholars have challenged the use of property rhetoric about ‘owning’ and ‘stealing’ by those […]

‘A comprehensive look at Brexit’s impact on intellectual property rights in the UK’

“The formal process for the UK’s departure from the EU began on 29 March 2017 when the UK Government notified the European Council under Article 50 of the Lisbon Treaty of its intention to leave the EU. This started a two year period in which to negotiate a withdrawal agreement (this period can be extended […]

Betsy Rosenblatt, ‘Belonging as Intellectual Creation’

Abstract: This Article considers the question of ‘what we create when we create’. Certainly, one product of creation is ‘stuff’ – inventions, trademarks, and works of authorship. But the same creative process also generates other public, personal, or social goods, such as skills, self-actualization, and community. This project postulates that for some creators, a sense […]