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Wednesday, March 7, 2012

Keith Hylton on Creation Without Restraints

Posted by Keith Hylton

Bohannan and Hovenkamp have written an impressive and eye-opening book. It is not an easy ready, it requires study. There are too many good points and interesting suggestions in this book to do justice to them all in a brief review.

I should confess that I am a competitor of the authors, in the sense that I have a book on pretty much the same topic that is scheduled to hit the stands before the end of this year (Cass and Hylton, Laws of Creation, Harvard University Press, 2012). I found reading Bohannon and Hovenkamp to be a humbling experience, because there are so many topics in their book that I wish I had addressed, and a few suggestions from them that I wish I had proposed in my book. But it is too late to go back and rewrite my manuscript; it is in the publisher’s hands and I am limited at this stage to minor revisions.

The core argument of Bohannan and Hovenkamp is that intellectual property law could be improved by importing concepts and methods of judicial decision-making from antitrust law. The most important concept that should be imported is a focus on the type of injury that merits redress under the statute. Antitrust law has developed the notion of “antitrust injury”, which permits courts to narrow the scope of the antitrust laws to practices that harm the competitive process as well as the plaintiff.

The core method of judicial decision-making that should be imported to intellectual property law, according to Bohannan and Hovenkamp, is a general reliance on the common law process rather than the statutory process. Bohannan and Hovenkamp refer to methods of statutory interpretation, but I think the bigger idea – one that I’ve promoted independently, though in different terms, in my forthcoming book – is greater reliance on, and trust in, the common law process rather than the statutory process.

I find it hard to quibble with these arguments, since both are very good suggestions. Bohannan and Hovenkamp do not envision these suggestions being taken up by any legislature. Their hope is that judges will read the book and use it as a guide in deciding cases.

If there is any basis on which to criticize the book, I think it begins at their normative aspiration, that judges will read the book and use it in thinking about cases. As the authors are well aware, it is unlikely that a large number of judges will read the book, and even less likely that they will actually use it in making decisions.

Relatively few judges are sufficiently familiar with antitrust law and policy to use it in thinking about intellectual property law. Yes, they are familiar with the basic ideas of antitrust, but probably not the details. If you tell them to develop a concept of “intellectual property injury” similar to the concept of “antitrust injury”, that will still leave them with a fair amount of work to do.

If the book is going to have an impact on judicial decision making, I think it will do so by encouraging judges to think about the big picture – specifically, what the intellectual property laws are all about. Here, Bohannan and Hovenkamp perform a useful service to judges by reminding them to think about this question in every case, and to keep it in mind when determining whether a plaintiff should get damages, or should get a large damage award, or should get an injunction. If judges can be persuaded to think about the purpose of the intellectual property laws, then many of the improvements that Bohannan and Hovenkamp would like to see probably will develop on their own through the common law process.

The big difference between antitrust law and intellectual property is not that courts have not imported thinking from antitrust law over to intellectual property. The biggest difference is that antitrust law has developed through the common law process on the basis of a skimpy statute. Intellectual property law, in contrast, and as the authors note, is constantly receiving visits for the purpose of “improvement” from the legislature. The result is that growth in statutory scope and density has choked off the freedom of judges to examine the purposes of the intellectual property laws, and to use those purposes in crafting solutions to the problems that fall before them. If Bohannan and Hovenkamp’s book can do something about this problem, they will have accomplished quite a lot.

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