GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2004

Status

Accepted

Abstract

Asked by conference organizers to consider the impact of the Supreme Court on intellectual property this millennium, this essay offers the view that the Supreme Court's intellectual property decisions by its present members generally are premised upon what may be viewed as contrived conflicts among bodies of law. Proceeding from this faulty foundation, the Court's efforts to resolve those conflicts subsequently have generated bodies of judge-made law that frustrate in important ways the basic statutory framework of intellectual property law. Examples of cases employing this problematic approach include Bonito Boats, Dastar, Warner-Jenkinson, Festo, TrafFix, and Holmes. Avoiding the contrivances not only would have left intact congressional action that the Court has not held to have been improper in its own right, but it also would have better promoted the normative goals these regimes were designed to achieve. Far from suggesting any particular business outcome in any of these cases, the essay proceeds from a comparative institutional analysis to show how decisional frameworks different from the ones the Court used would better achieve the basic goals and institutions of the particular statutory regimes of intellectual property law at issue in these cases.

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