Volume 1: Revisiting the Kinship between Copyright and Patent Law
There has been growing concern in recent years that patents confer too much power in the context of standard setting organizations (“SSOs”), creating a “hold-up problem” for implementers. Those concerned often urge antitrust enforcers to intervene or claim SSOs should establish patent policies that better protect implementers. This Article explains why these concerns undermine incentives to innovate and proposes a “New Madison” approach for the application of antitrust law to intellectual property rights. The New Madison approach, inspired by the writings of James Madison in the Founding Era, has four basic premises: (1) patent hold-up is fundamentally not an antitrust problem, and therefore antitrust law should not be used as a tool to police contractual commitments patent holders make to SSOs; (2) SSOs should not become vehicles for implementers to skew conditions in their favor when incorporating a patented technology; (3) SSOs and courts should have a very high burden before adopting rules that severely restrict the right of patent holders to exclude or—even worse—adopting rules that amount to a de facto compulsory licensing scheme; (4) a unilateral and unconditional refusal to license a patent should be considered per se legal from the perspective of the antitrust laws.
This symposium piece first seeks to unpack the relationship between intellectual property infringement and property offenses, and then to understand how the connection between the two has informed when the former is criminalized. The piece examines the porous nature of the boundary line between intangible and tangible resources, showing the at-times uncomfortable fit of the non-rivalrous label to intellectual property. An analysis of the respective harms of the two types of violations follows. This symposium contribution shows how lawmakers have treated patents differently from other forms of intellectual property by choosing not to criminalize their infringement, due both to utilitarian reasons and public choice rationales. While historically the entities who pushed for harsher sanctions for copyright violations in particular have often not encountered resistance, a combination of large tech companies’ and grassroots organizations’ activism has thwarted attempts at strengthened enforcement in recent times. The political landscape of copyright lawmaking, however, may be on its way to the greater degree of equipoise between support and opposition to greater sanctions that one observes in the patent legislative context.
This essay explores how copyright’s doctrine of abstraction, filtration, and comparison is being used in patent law, and how that use could be improved. This test, which finds its roots in the 1930’s but wasn’t fully developed until the 1990’s, is one that defines scope for determining infringement. The copyrighted work is abstracted into parts, from ideas at the highest level to literal expression at the lowest. Then, unprotected elements are filtered out. Finally what remains of the original work is compared to the accused work to determine if the copying was illicit. This sounds far removed from patent law, but there is a kinship, though perhaps one that is not so historic and a bit hidden. The essence of the test is determining protectable subject matter. These same needs permeate patent law as well. This essay explores how the test is implicitly used and should be explicitly used. With design patents, the test might apply as it does in copyright, with functional elements being filtered out during infringement. Current precedent allows for this filtering, but not clearly or consistently. With utility patents, the abstraction, filtration, and comparison happen earlier, during the test for patentable subject matter. Here, the comparison is with what is conventional or well known. The essay concludes by discussing why the application is different for design and utility patents.