Intellectual Property and the Common Law

Leading scholars of intellectual property and information policy examine what the common law can contribute to discussions about intellectual property's scope, structure and function.

Shyamkrishna Balganesh (Edited by)

9781107515345, Cambridge University Press

Paperback / softback, published 26 March 2015

576 pages, 5 b/w illus.
22.9 x 15.2 x 3 cm, 0.85 kg

In this volume, leading scholars of intellectual property and information policy examine what the common law - a method of reasoning, an approach to rule making, and a body of substantive law - can contribute to discussions about the scope, structure and function of intellectual property. The book presents an array of methodologies, substantive areas and normative positions, tying these concepts together by looking to the common law for guidance. Drawing on interdisciplinary ideas and principles that are embedded within the working of common law, it shows that the answers to many of modern intellectual property law's most puzzling questions may be found in the wisdom, versatility and adaptability of the common law. The book argues that despite the degree of interdisciplinary specialization in the field, intellectual property is fundamentally a creation of the law; therefore, the basic building blocks of the law can shed important light on what intellectual property can and should (and was perhaps meant to) be.

Part I. Judge-Made Intellectual Property Law: 1. Judges and property Hanoch Dagan
2. Equitable intellectual property: what's wrong with misappropriation? Henry E. Smith
3. The mixed heritage of federal intellectual property law and ramifications for statutory interpretation Peter S. Menell
4. Interpretive methodology and delegations to courts: are 'common-law statutes' different? Margaret H. Lemos
5. Dynamic claim interpretation Dan L. Burk
6. Did Phillips change anything? Empirical analysis of the federal circuit's claim construction jurisprudence R. Polk Wagner and Lee Petherbridge
7. An empirical look at trade secret law's shift from common to statutory law Michael Risch
8. The impact of codification on the judicial development of copyright Christopher S. Yoo
Part II. The Common Law Method in Intellectual Property: 9. Legal pragmatism and intellectual property law Thomas F. Cotter
10. Copyright, custom, and lessons from the common law Jennifer E. Rothman
11. Common law reasoning and cyber trespass Emily Sherwin
Part III. State Intellectual Property Law: 12. The intellectual property clause's pre-emptive effect Jeanne C. Fromer
13. Trademark law's faux federalism Mark P. McKenna
Part IV. Plural Values in Intellectual Property: 14. The normative structure of copyright law Shyamkrishna Balganesh
15. Trade secret and human freedom Madhavi Sunder
16. Laying bare an ethical thread: from IP to property to private law? David Lametti
Part V. Parallels between the Substantive Common Law and Intellectual Property: 17. Technology and tracing costs: lessons from real property Molly Shaffer Van Houweling
18. Intellectual usufructs: trade secrets, hot news, and the usufructuary paradigm at common law Eric R. Claeys
19. The fault liability standard in copyright Steven Hetcher
20. The concept of 'harm' in copyright: deploying the disanalogy of trespass Wendy J. Gordon
21. The role of unfair competition in the common law Shyamkrishna Balganesh and Gideon Parchomovsky
22. The fractioning of patent law Mark A. Lemley
23. Permanent injunctions as punitive damages in patent infringement cases Paul J. Heald
24. Sequential injunctions in patent litigation: the gratuitous novelty of TiVo v. EchoStar Richard A. Epstein.

Subject Areas: Intellectual property law [LNR], Comparative law [LAM], Law [L]