Clark D. Asay


Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. Conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between copyright and patent laws finds some support in the distinction between "authors" and "inventors," as well as that between "writings" and "discoveries," in the U.S. Constitution's Intellectual Property Clause. And Congress, courts, and scholars have largely perpetuated the divide in separately enacting, interpreting, and analyzing copyright and patent laws over time.

This Article argues for partially bridging this traditional divide between patent and copyright laws. It proposes doing so by adjusting copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some copyright cases that implicate technological innovation, copyright law's fair use defense would be well served by incorporating patent law principles relating to obviousness and novelty in assessing whether some technology's use of copyrighted works is a fair use. Furthermore, injunctive relief standards under patent law should expressly take into account how granting patent law remedies may affect copyrightable creative activities.

At least three reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and inventive efforts prevalent in today's world. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research. This research shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and facilitating them under separate bodies of law difficult. And third, some recent scholarship suggests that, based on the historical record, the Constitution's Intellectual Property Clause is best interpreted as assuming interdependencies between creative and inventive activities. This Article concludes by suggesting that hybridization efforts may be warranted not only in the intellectual property realm, but also within the law more generally.