Menell on The Mixed Heritage of Federal Intellectual Property Law

The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation has just been posted by Peter S. Menell, University of California, Berkeley - School of Law.  It is forthcoming in Intellectual Property and the Common Law (Shyam Balganesh, ed., 2011), which is based on this conference.  Here's the abstract:

This article explores the unique and complex mix of statutory provisions and common law jurisprudence that characterizes federal intellectual property law. Patent and copyright law trace their roots back to terse 1790 enactments on which the judiciary embroidered critical requirements and limitations. In line with common law traditions and less formal division between legislative and judicial roles in the early republic, courts established many critical doctrines and frameworks, including patentable subject matter limitations, patent’s inventiveness (non-obviousness) standard, patent and copyright infringement and indirect infringement doctrines, patent’s experimental use, and copyright’s fair use, among other important doctrines. The rapidity and unpredictability of technological change have continually buffeted courts with new challenges. Jurists have drawn upon their common law background, tort law and equitable principles, and pragmatism to evolve the patent and copyright systems. This response system in conjunction with Congress’s institutional impediments to responding quickly to technological change has enhanced the judiciary’s substantive imprint on federal intellectual property law. It has enhanced intellectual property law’s sensitivity to the inherent heterogeneity of creative activity and improved its responsiveness to technological change. Congress has perpetuated these evolutionary processes – both expressly and implicitly – throughout U.S. history. Hence, courts should be especially careful to trace the provenance of copyright and patent provisions and doctrines to determine the proper lens for interpreting and evolving these laws.