Intellectual Property

Point of Novelty

Mark A. Lemley - Stanford Law School

We award patents to inventors because we hope to encourage new ideas.  It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention are in fact new.  A patented invention is legally defined by its claims—written definitions of the invention.  And… Read More »

Promoting Progress with Fair Use

Joshua Mitchell

Intellectual property (IP) law in the United States is off course and headed onto the shoals of ever-increasing protectionism. Copyright law, in particular, has come uncoupled from its constitutionally defined purpose. A tightly circumscribed right intended to incentivize creativity and the spread of knowledge has instead become an ever-expanding monopoly… Read More »

The Virtues of Virtual Marking in Patent Reform

Corey McCaffrey

The world is full of reminders that we are surrounded by patented inventions.  Everyday products from coffee cup lids to cell phones bear the markings of United States patent numbers.  For example, Texas Instruments (TI) stamped the back of its popular TI-83 Plus graphing calculator with three patent numbers.  By… Read More »

The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment

Sarah Schacter

On a Wednesday in September 2008, presumptive vice-presidential candidate Sarah Palin was introduced at the Republican National Convention in St. Paul, Minnesota for her much-anticipated speech accepting the Republican nomination.  Before she spoke, the rock band Heart’s classic song “Barracuda” was played for the energized crowd.  The song was played again… Read More »

A Psychology of Intellectual Property

Jeanne C. Fromer - Fordham Law School

The U.S. Constitution grants Congress the power to promulgate laws “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Within the same clause and with the identical purpose of promoting innovation, Congress… Read More »

The Riddle Underlying Refusal-to-Deal Theory

Michael Jacobs & Alan Devlin

May a dominant firm refuse to share its intellectual property (IP) with its rivals?  This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws.  In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy.  Specifically,… Read More »


Derek E. Bambauer - Brooklyn Law School

Your Internet is missing something.
In India, it’s pornography. In China, it’s political dissent; in France, white supremacist sites; in America, copyrighted material. Countries worldwide are using a combination of legal rules and technological tools to make targeted information disappear from their citizens’ view of cyberspace. This strategy, known as… Read More »

Irrelevant Confusion

Mark A. Lemley & Mark McKenna

In 2006, thousands of soccer fans showed up to the World Cup game between the Netherlands and the Ivory Coast wearing pants in the colors of the Dutch national team. The pants had been given out as promotional gifts by a beer company. FIFA, the governing body of international soccer,… Read More »

The Disintegration of Intellectual Property?: A Classical Liberal Defense

Richard A. Epstein - New York University Law School

The Conceptual Counteroffensive Against Private Property
This basic theory of property rights identifies three central components of private ownership:  the rights to possess, use, and dispose of property. Taken together, these elements facilitate the creation of complex voluntary arrangements to coordinate the activities of multiple actors. The operational… Read More »

Commercializing Patents

Ted Sichelman - University of San Diego Law School

About half, probably more, of all patented inventions in the United States are never commercially exploited. Many of these undeveloped inventions are commercially worthless ab initio, such as the anti-eating face mask, beer bottle mini-umbrella, and weed-cutting golf club.

Yet, for several reasons, the patent “underdevelopment” problem arguably applies to… Read More »