License to Sue?

Abstract

Courts, commentators and practitioners have for too long viewed intellectual property law as a discrete discipline, without putting it into the proper theoretical context of general jurisprudence. Intellectual property law cannot and must not exist on its own, outside the normative framework of overlapping legal institutions. Even within the rubric of intellectual property, courts have overlooked the potential for cross-applying relevant doctrines between patent, copyright, and trademark law. Certainly, when intellectual property disputes touch on other disciplines, such as civil procedure, contract, or tort law, courts have tended to overlook their synergies, focusing instead on only one of several important policies or principles. The result has gone beyond missed opportunities. It has led to judicial mistakes, including in the very recent, and broad-based 2007 U.S. Supreme Court case of MedImmune v. Genentech. The Court's errors have far-reaching implications for the future of the law and its practice.

This article examines the intersection of normative values between intellectual property and contract law. Utilizing graphic illustrations in tables and diagrams, the article proposes a more appropriate interdisciplinary framework for cases involving intellectual property licensing. Courts, litigants, and license negotiators may employ this matrix in order to reach more rational and informed decisions.

Keywords: intellectual property, patent, copyright, trademark, licensing, license, technology, business, corporate, contract, civil procedure

JEL Classification: K00, K10, K12