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Intellectual Property and Technology
University of Mississippi School of Law
Myers, Gary

Intellectual Property Outline
Professor Gary Myers
 
 
I.                   Intellectual Property Overview – Path of Analysis for every topic in I.P.
A)    Validity
B)    Ownership
C)    Infringement
D)    Defenses
E)     Remedies
 
II.                Intellectual Property History:
 
A)    I.P. Clause of the Constitution (Article I, § 8)
1.      Congress has the power to promote Science (knowledge and information) and the Useful Arts (technology and inventions) by securing to authors (science) and inventors (useful arts), for a limited time, exclusive rights to their respective writings and discoveries
2.      Policy Underlying – Utilitarian idea of general progress of knowledge
B)    Power to grant trademarks comes from the Commerce Clause (NOT the I.P. Clause, generally for patents & copyrights) b/c protection of trademarks is grounded in notions of fair competition, trade, and commerce.
 
III.             Policy Underlying I.P. Protection
 
A)    Public Good Theory – Economic; market governs; based on the idea that, without I.P. protection, “authors” have little incentive to research and develop goods and services that can easily be imitated by others, with less expense incurred. (Think: Drug Industry)
1.      Crux – exclusive rights create an economic incentive to continue researching and developing new and better goods and services
2.      Protection is nonetheless limited because, once inventors and authors are compensated, competition is healthy, creating access by as many people as possible to the invention.
 
B)    Natural Rights Theory – based on the idea that everybody should be entitled to the fruits of their labor (beyond just economics); Emphasized in France and Europe; recognizes the moral rights of authors and inventors, however it does not derive any support from the U.S. Constitution (which is why America stresses the Public Good model)
1.      Implications –
a.       Public good theory will have less exclusive rights, that have a shorter duration; more restrictions on the rights of authors and inventors
b.

artisans would place their personal insignia on the goods they created; over time, the law began to recognize the value and good will consumers placed in such insignia
2.      There was a drive to prevent customer confusion and unjust enrichment associated with people other than the true author using such insignia
B)    Common Law Trademark Actions –
1.      Palming Off – you can sue someone for passing off or attempting to pass off upon the public the goods or services of another (focus is on preventing consumer confusion and unjust enrichment)
2.      Unfair Competition – refers to the RESULT; when a person is successfully palming off goods and thereby taking business and money away from the true author/inventor. Process for finding it: 
Consumers WOULD buy P’s product b/c of the good will associated with it . . .