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The Role of the Subconscious in Intellectual Property Law

Hastings Science & Technology Law Journal, Vol. 2, p. 1, 2010

25 Pages Posted: 25 May 2010  

Robin Feldman

University of California Hastings College of the Law

Date Written: August 18, 2009

Abstract

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. While we are often quite aware of what we are doing and how we have come to do it, such is not always the case. Various human drives can lead us, for example, to be perfectly convinced that our actions are appropriate or that our motives are pure, despite considerable evidence to the contrary.

The human mind is particularly important in the realm of intellectual property. The stuff of intellectual property, that which we choose to protect, flows from processes of the human mind as it interacts with the natural world and with creations that have come before. Without knowing any more, one might imagine that subconscious processes of the human mind could come to play a role in the unfolding doctrines.

This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, the piece argues that although such impulses may be treated differently in different areas of Intellectual Property law, the variations can be understood in the context of the moral stance adopted in the doctrinal area. Where the connection between the moral stance of the doctrine and the approach taken by the doctrine is muddled, it may signal a doctrine in disarray. As an example, the piece analyszes the doctrine of Inequitable Conduct in patent law, concluding that this area of law has lost its bearings.

Keywords: inequitable conduct, intellectual property, patent, trade secret, copyright

JEL Classification: K19, O30, O31

Suggested Citation

Feldman, Robin, The Role of the Subconscious in Intellectual Property Law (August 18, 2009). Hastings Science & Technology Law Journal, Vol. 2, p. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1615771

Robin Feldman (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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