Boston University Research Magazine 2007

Defending Innovation: Intellectual Property in the 21st Century

Defending Innovation: Intellectual Property in the 21st Century

By Meredith Bartron

Patent law and copyrights were created to provide incentives for innovation, in order to encourage the creative and economic growth of the country. But what if these laws do the opposite in practice? What if some intellectual property claims can actually “chill further innovation,” as Robert Bone, professor of law and Richard L. Godfrey Faculty Research Scholar, suggests.

While debates over intellectual property are not new, they have evolved along with changes in America's information-based economy. Federal legislation for intellectual property (IP) is divided into three primary categories: patent, copyright, and trademark. The first two categories promote what the Constitution calls “the progress of science and the useful arts”; the third, trademark law, fosters accuracy in marketplace communication. Additional regimes such as trade secret law and rights of publicity are based in the laws of the various states. These categories have never been mutually exclusive, with plenty of gaps and overlaps between them. But all of them can require people to obtain licenses before copying or making certain artifacts, affecting a broad range of commercial and creative activity, both pragmatic and purely artistic.

• Fundamental QuestionsOne of Wendy Jane Gordon's interests is the way technology has complicated the law's approach to creativity. “Copyright has always prohibited much 'copying' of expression,” she says, “but it has never purported to restrain people from glancing through texts or reading their favorite books over and over, whether for entertainment or learning or as part of their making new works.”
• Looking at the NumbersMegan MacGarvie, assistant professor of finance and economics in the School of Management, is one of the scholars at Boston University looking at technology issues. Since the creation of the United States Patent and Trademark Office in 1790, patents have historically been the avenue for innovation. Inscribed above the entrance to the Patent Office's original headquarters is Abraham Lincoln's famous quote, “The patent system adds the fuel of interest to the fire of genius.” But as technology has evolved, so have patents, and some fear not for the best. MacGarvie hopes her research will inform the debate over the validity of software patents by providing a needed dose of empiricism to serve as a foundation for already circulating theories.
• Historicizing the PresentRobert 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.
• Seeking Substantive ReformMichael Meurer, professor of law and Michaels Faculty Research Scholar, has boiled down his recent research to one question: Do Patents Work? That's also the tentative title of his forthcoming book with coauthor James Bessen. The answer, Meurer believes, is no.