Defending Innovation: Intellectual Property in the 21st Century
Historicizing the Present
Robert Bone's research into trademark and trade secret law also tries to answer the central question, “How big should intellectual property law be?” He approaches this question from the perspective of history and theory. In articles such as “Enforcement Costs and Trademark Puzzles” and “Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law,” Bone takes a hard look at claims that trademark law is overbroad and traces the historical reasons behind recent expansions. He argues that some expansions others have criticized are actually sensible ways to reduce potentially high litigation costs. However, he also finds that some expansions are not justified and traces their origins to the role that the vague and highly elastic concept of goodwill played in trademark law's development.
A major goal of Bone's trademark research is to provide a better understanding of the theoretical foundations of trademark law and the history of trademark doctrine. Theoretical and historical analysis, in turn, can identify the causes of current problems and ultimately lead to sensible reform.
Bone's research into trade secret law also takes a critical bent. He carefully examines the policy underpinnings and shows that the law's current scope is too broad to function properly in our information-based, technologically driven economy. “Secrecy begins with a kind of taint,” he says, making the whole body of trade secret law initially suspect. Encouraging secrecy chills future innovation by keeping information from others and increases litigation costs by complicating enforcement proceedings with adverse effects on competition and creativity. In the end, Bone recommends that most of trade secret law should be limited to contract-based liability principles.
Bone believes that sound IP policy must be based on carefully developed theory, which is informed by a firm grasp of history and guided by reliable empirical work shedding light on how IP law actually works in practice. His research illustrates what can be accomplished with this approach.
For more information, see www.bu.edu/law/faculty/profiles/fullcvs/full-time/bone_r.html.
