Intellectual Property Law Hybridization

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time. In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities. Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally

Intellectual Property Law Hybridization

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time. In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities. Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally

To Innovate or Not to Innovate, That Is the Question: The Functions, Failures, and Foibles of the Reward Function Theory of Patent Law in Relation to Computer Software Platforms

The patent system has traditionally been viewed as having two primary functions: the reward function and the prospect function. Although these theories do explain some behavior which results from the practical applications of the patent system, they also overlook some behavior of the patent system which indicates a failure of these functions. In order to properly prevent such failure, this paper proposes that the patent system adopt an orientation that will lead to increased innovative rivalry and competition. In Part I, using the computer operating system software market as an example, I propose a framework for reconceptualizing patent protection as it applies to software operating system platforms. Part II briefly examines both the classical and neoclassical reward function and prospect function theories. Part III defines the innovation market and describes the market dynamics that create disincentives for innovation. These disincentives tend to limit the number of competitors in innovation markets and create conditions which reduce the effectiveness of the reward incentives to the extent that the reward function fails in its entirety. Part IV examines the resulting harms of this failure and identifies how reward function failure affects product markets, which are dependent upon the reward function. Part V discusses why the prospect function does not address the problems related to reward function failure and the reasons that the promotion of innovative rivalry would alleviate some of the problems. Part VI uses the relationship between computer programs to illustrate the shortcomings of the patent system\u27s inability to prevent the problems created by non-competitive innovation. This section also considers how the patent system might be better adjusted to prevent reward function failure. Lastly, Part VI also proposes a series of alternative frameworks for creating a competitively oriented approach to the application of the patent system in the case of computer software platforms

APIs and Copyright Protection: The Potential Impact on Software Compatibility in the Programming Industry, 16 J. Marshall Rev. Intell. Prop. L. 153 (2016)

In Oracle v. Google, the Federal Circuit set precedent when it decided to grant copyright protection to APIs. This comment examines the potential impact the computer programming industry will face now that APIs are deemed copyrightable. This comment also discusses Google s success in using fair use as an affirmative defense in order to use copyrightable APIs and what that means for the rest of the computer programming industry. Due to the fast-paced and ever-changing world of technology, this comment also proposes that the abstract-filtration-comparison test is the appropriate test to be used in determining API copyrightability if the issue is raised at the Supreme Court level

A Little Overlap Never Hurt Anyone: Overlapping IP Rights and Oracle Am., Inc. v. Google LLC

Intellectual property (“IP”) protections have traditionally been mutually exclusive; an innovator who obtains one type of protection could not obtain another on the same invention. Though the possibility of overlapping IP rights has changed substantially over the years, the general opinion remained one of disapproval until recently. In Oracle Am., Inc. v. Google LLC, the Federal Circuit voiced approval of overlapping IP rights. This article examines the history of overlapping IP rights and advocates that the Federal Circuit’s acceptance of such an overlap is the proper standard

How open is open enough?: Melding proprietary and open source platform strategies

Computer platforms provide an integrated architecture of hardware and software standards as a basis for developing complementary assets. The most successful platforms were owned by proprietary sponsors that controlled platform evolution and appropriated associated rewards. Responding to the Internet and open source systems, three traditional vendors of proprietary platforms experimented with hybrid strategies which attempted to combine the advantages of open source software while retaining control and differentiation. Such hybrid standards strategies reflect the competing imperatives for adoption and appropriability, and suggest the conditions under which such strategies may be preferable to either the purely open or purely proprietary alternatives

Interoperability and market foreclosure in the European Microsoft case.

In this paper we discuss some of the most important economic issues raised in European Commission vs. Microsoft (2004) concerning the market for work group servers. In our view, the most important economic issues relate to (a) foreclosure incentives and (b) innovation effects of the proposed remedy. We discuss the economic basis for the Commission’s claims that Microsoft had incentives to exclude rivals in the work group server market through degrading the interoperability of their server operating systems with Windows. We also examine the impact of compulsory disclosure of information on interoperability and argue that the effects on innovation are not unambiguously negative as Microsoft claim. We conclude with some general implications of the case for anti-trust enforcement in high innovation sectors.