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Intellectual Property
St. Johns University School of Law
Sheff, Jeremy N.

Intellectual_Property_-_Sheff_-_Fall_2010
 
Intro to Intellectual Property
 
            •           Introduction & Overview
            •           Philosophical Perspectives
            •           What is “property”?
            •           A system of rights and duties among people with respect to physical things.
            •           System of Rights: Possession, use, dispose, exclude
            •           Rights define relationship between people
            •           How might the legal concept of “property” apply outside the realm of physical things?
            •           What non-physical “things” might be the subject of a legal system of “intellectual property?”
            •           Ideas
            •           Expressions of ideas
            •           Why might we want to apply property-like rules to such “things?”
            •           Moral Arguments (“Natural Law”)
            •           “Personhood” Arguments
            •           Utilitarian/Economic Efficiency Arguments
            •           Moral Arguments for Intellectual Property
            •           John Locke, Two Treaties on Government –“I have a natural right to my own person”
            •           “[E]very man has a ‘property’ in his own ‘person’…. The ‘labour’ of his body and the ‘work’ of his hands, we may say, are properly his.”
            •           “[T]his ‘labour’ being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.”
            •           Must make sure creator leaves the same rights for everyone else.
            •           i.e., patents – time limitation (after expiration, everyone enjoys the same right as inventor)
            •           Rationale of Moral Argument: My body is mine. I have a natural right to my natural physical body. I have a right to use my body. I have a right to work. I have a right to the fruits of my labor. Mixing labor with physical world.
            •           “Personhood” Arguments for Intellectual Property
            •           Peggy Radin, Property and Personhood
            •           “To achieve proper self-development- to be a person – an individual needs some control over resources in the external environment….The person becomes a real self only by engaging in a property relationship with something external. Such a relationship is the goal of the person.”
            •           The root of a person is will that will must have something to act on only fulfilled through a relationship of the physical world.
            •           “One may gauge the strength or significance of someone’s relationship with an object by the kind of pain that would occasionally by its loss…Not all object-loss is equally important. Some objects may approach the fungible end of the continuum so that the justification for protecting them as specially related to persons disappears….A few objects may be so close to the personal end of the continuum that no compensation could be ‘just.’”
            •           Dollar bill vs. house you grew up in (wedding ring).
            •           Utilitarian/Economic Efficiency Arguments for Intellectual Property
            •           A) Promoting Innovation and Creativity
            •           Progress Clause –“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
            •           Economic Incentive Benefit–Intellectual property protection is necessary to encourage inventors, authors, and artists to invest in the process of creation. Without such protection, others could copy or otherwise imitate the intellectual work without incurring the costs and effort of creation, thereby inhibiting the original creators from reaping reasonable return on their investment.
            •           Counter: Cost of Limiting Diffusion – Society at large can be harmed by intellectual property protection to the extent that it unnecessarily raises the cost of acquiring a product (through monopoly pricing by the right holder).
            •           Thomas Jefferson to Isaac McPherson:
            •           “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it….”
            •           “Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from the, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody…. [O]ther nations have though that these monopolies produce more embarrassment than advantage to society….”
            •           Reasons for Not Protecting Ideas/Intellectual Property:
            •           Ideas are nonrivalrous
            •           You can take back physical property, you can’t unknow an idea. You cannot be excluded from an idea, unlike a piece of property. Once an idea is expressed, if forces itself into the possession of every one.
            •           Monopoly Effect / Lack of Market Competition
            •           Counterpoint: Inventors have development

investment in such information. (Trade Secret = form of prop.)
            •           Tort Theory – Deterrence of wrongful acts – Aim of trade secret law is to punish and prevent illicit behavior, and even to uphold reasonable standards of commercial behavior.
            •           Property Rights
            •           Treatment of trade secrets as property rights vested in the trade secret “owner” is consistent with the view of trade secrets law as providing an additional incentive to innovate, beyond those provided in patent law.
            •           Similarities to more tangible sources of property
            •           a trade secret is assignable
            •           a trade secret can form the res of a trust
            •           it passes to a trustee in bankruptcy
            •           Tort Law
            •           “Duty-based” theory / “Maintenance of Commercial Morality”
            •           the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs….
            •           Elements of a Trade Secret Claim
            •           Protectable Subject Matter
            •           Reasonable Effort(s) to Maintain Secrecy
            •           Misappropriation
            •           (obtained by) Improper Means
            •           (breach of) Confidential Relationship
            •           Contract (Express)
            •           Employment Relation (Implied)
            •           Advantages Over Patents
            •           Probably cheaper
            •           Doesn’t require disclosure of information
            •           Potentially unlimited time of protection
            •           Larger pool of protectable subject matter
            •           Disadvantages Over Patents
            •           Patent gives you stronger rights (exclusivity) puts others on notice
            •           Trade Secret is vulnerable to independent discovery and reverse engineering.
 
 
            •           Subject Matter of Trade Secrets
            •           Legal Criteria –Information that is secret and that has value by virtue of it’s secrecy.
            •           Statutory Definitions