Washington Law Review


Peter Lee


This Article explores the concept of intellectual infrastructure in intellectual property law. It makes three principal contributions. First, it builds upon prior work to elaborate an infrastructure-based theory of productivity that encompasses trademark, copyright, and patent law. It is well-recognized that intellectual property law promotes productivity through allowing exclusive rights on refined intellectual creations such as source-identifying marks, particularized expressions, and specific inventions. Somewhat less appreciated, these bodies of law also promote productivity through ensuring wide access to productivity-enabling “intellectual infrastructure,” such as generic words, ideas, and natural principles, by making these assets ineligible for exclusive rights. This Article argues that this distinction between refined “applications,” which are eligible for exclusive rights, and foundational infrastructure, which remains subject to liberal access, is critical to promoting commercial, creative, and inventive activity throughout intellectual property law. Second, this Article offers a social account of the definition and evolution of intellectual infrastructure. Infrastructure is a dynamic entity, and intellectual creations subject to exclusive rights can “evolve into” infrastructure through widespread social appropriation. For example, trademarks can evolve into generic words, particularized expressions can develop into stock literary devices, and inventions can become standard platforms for technological development. This Article argues that trademark and copyright law employ social feedback mechanisms to relax exclusive rights on assets that become intellectual infrastructure and further contends that the absence of such mechanisms in patent law may inhibit technological progress. Trademark and copyright doctrines such as genericide, the idea-expression dichotomy, and the scenes a faire doctrine dynamically relegate refined intellectual creations to the public domain as they achieve infrastructural status. Patent law lacks an analogous mechanism for liberalizing access to patented inventions that achieve this status, such as isolated, purified human embryonic stem cells and information technology standards. While patent law’s relatively short term of protection mitigates the harshness of exclusive rights on foundational technologies, this one-size-fits-all approach ignores the reality that certain inventions can become infrastructure well before expiration of the patent term, particularly in rapidly advancing industries such as biotechnology and information technology. Third, this Article draws on the Supreme Court’s recent decision in eBay Inc. v. MercExchange, L.L.C. to propose a social feedback mechanism for liberalizing access to patented infrastructure. Specifically, it argues that courts in patent infringement cases should deny injunctions and allow liability rule protection for patented inventions used as infrastructure. Rather than simply relegating these foundational technologies to the public domain, this approach enhances access to patented infrastructure while maintaining incentives to invent.

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