Wednesday, August 2, 2017

Kevin Collins on Patent Law's Authorship Screen

Numerous scholars have examined the various functionality screens that are used to prevent non-utility-patent areas of IP from usurping what is properly the domain of utility patent law (see, e.g., the terrific recent articles by Chris Buccafusco and Mark Lemley and by Mark McKenna and Chris Sprigman). But hardly anyone has asked the inverse question: How should utility patent law screen out things that should be protected by non-patent IP? In Patent Law's Authorship Screen (forthcoming U. Chi. L. Rev.), Kevin Collins focuses on the patent/copyright boundary, and he coins the term "authorship screen" as the mirror image of copyright's functionality screen. As with pretty much everything Collins writes, it is thought provoking and well worth reading.

As a normative matter, Collins argues that an authorship screen is important to prevent patents as "backdoor copyrights" that "override the competition/protection balance" of copyright law. Patent protection for authorial innovation "becomes thick when it should be thin"; e.g., it "overrides copyright's requirement to demonstrate copying as part of infringement, its idea/expression dichotomy … and its fair use doctrine." (Of course, figuring out whether either patent law or copyright law draw the right competition/protection balance is a more difficult question!)

As a doctrinal matter, he contends that the authorship screen is implemented through multiple doctrines, as illustrated below. An informative authorship screen screens out informational content to a human audience, and an aesthetic authorship screen screens out aesthetic innovations (i.e., those "that allow[] a human audience to enjoy pleasurable, form-centered experiences"). And within each of these screens, there is both a coarse screen against goods that lack any functional features, and a finer screen against functional goods whose point of novelty is aesthetic.

Finally, Collins examines how the authorship screen works (and how it should work) in his particular area of expertise: architectural innovation. (If you haven't read Collins's article on the history of architectural copyright, you should at least read Mark McKenna's review at Jotwell.) He concludes that "the PTO seems to issue patents on what is plainly authorial innovation in dispositions of space on an unusually frequent basis," but that the problem "is not poorly calibrated doctrine but rather PTO errors in the application of the doctrine."

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