Statute v. Constitution as IP Limiting Doctrine

In his forthcoming article, "Paths or Fences: Patents, Copyrights, and the Constitution," Derek Bambauer (Arizona), notices (and provides some data to support) a discrepancy in how boundary and limiting issues are handled in patent and copyright. He notes that, for reasons he theorizes, big copyright issues are often "fenced in" by the Constitution – that is the constitution limits what can be protected. But patent issues are often resolved by statute, because the Constitution creates a "path" which Congress may follow. Thus, he notes, we have two types of IP emanating from the same source, but treated differently for unjustifiable reasons.The article is forthcoming in Iowa Law Review, and is posted on SSRN. The abstract is here:Congressional power over patents and copyrights flows from the same constitutional source, and the doctrines have similar missions. Yet the Supreme Court has approached these areas from distinctly different angles. With…

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