Law Commons^™

Legal Fictions And The Role Of Information In Patent Law, Craig Allen Nard

Faculty Publications

The common law plays a prominent role in the development of American patent law. Judicial stewardship of the patent space can be seen as an institutional advantage, one that compares favorably to punctuated, and potentially more distortive or inartful, congressional action. The common law allows for a certain flexibility, and despite its deep allegiance to tradition, crust forms more readily on statutory law than the common law. One of the tools that reflects this institutional litheness is the use of legal fictions, which have been employed by judges in various areas of the law seemingly since the beginning of the …

The Interaction Of Exhaustion And The General Law, Aaron K. Perzanowski, Ariel Katz, Guy A. Rub

Faculty Publications

In Statutory Domain and the Commercial Law of Intellectual Property, John Duffy and Richard Hynes argue that IP exhaustion — the doctrine that limits a patentee’s or copyright holder’s control over goods in the stream of commerce — was created and functions exclusively to confine IP law within its own domain and prevent it from displacing other laws.

In this essay, we explain why we are not persuaded. A central theme in Duffy and Haynes work is the argument that the common law did not play a role in the emergence and development of exhaustion. However, we show that the …