Earlier this month, Professor Eva Subotnik spoke on a panel at the Annual AALS Meeting that addressed the scope of intellectual property rights. A description of the topic and speakers follows:
Interpreting the Scope of Rights in IP
A recurring question in intellectual property law concerns the delineation of the scope of the protection it confers. Enforcing rights in intangible things often requires some form of interpretation (linguistic or otherwise) to determine the very boundaries of the thing protected. In order to understand what a copyright’s protection includes, for instance, it is necessary to engage in idea/expression analysis, or otherwise separate the utilitarian (non-protectible) aspects from the expressive (protectable) ones. A patent’s enforcement typically hinges on claim construction (or interpretation), and a trademark’s enforceability similarly depends on interpretive issues regarding the trademark’s meaning to consumers and its functionality. All three areas thus embed epistemological and evidentiary questions in their assessment of scope yet they are not always recognized as questions concerning interpretive choices and methods. Recent case law has seen renewed attention to interpretive questions, including how patents should be construed (and whether these issues are questions of fact or law); by whom; and at what point in litigation. Recent scholarly debates concern whether IP statutes should be interpreted like other subject matter statutes.
This Panel examined the question of scope in intellectual property law as a function of interpretive questions that require greater theorization as such.
Amy M. Adler, New York University School of Law
Kevin Emerson Collins, Washington University in St. Louis School of Law
Mark A. Lemley, Stanford Law School
Margaret-Jane Radin, The University of Michigan Law School
Eva E. Subotnik, St. John's University School of Law
Moderator: Zahr Said, University of Washington School of Law