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 about patentable subject matter attest. But the delineation problem of patent law’s boundaries spills over into a much bigger set of questions about the structure of the IP system because copyright, trademark, and design patent all contain doctrines that are designed, at least in significant part, to exclude ‘useful’ or ‘functional’ matter on the basis that those things belong to utility patent law. This is a foundational point; every other area of IP understands its own domain to some extent in negative relation to utility patent … (more)

Mark P McKenna and Christopher Jon Sprigman, ‘What’s In, and What’s Out: How IP’s Boundary Rules Shape Innovation’, Harvard Journal of Law and Technology, volume 30, number 2 (Spring 2017).

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