Patent Law's Authorship Screen
71 Pages Posted: 23 Feb 2017 Last revised: 2 Nov 2017
Date Written: February 23, 2017
Intellectual property regimes frequently employ boundary screens. Boundary screens protect the different balances of competition and protection that Congress has struck in the different regimes by preventing the goods whose protectability should be determined by one regime from infiltrating into and receiving protection under another regime.
Prior scholarship on boundary screens offers in-depth analyses of the functionality screens in nonpatent intellectual property that avoid upsetting patent law’s competition–protection balance for functional innovation.
This Article turns the table, asking a previously unasked question about how patent’s authorship screen—that is, its boundary screen that prevents infiltration by the authorial innovation that is the proper domain of copyright—does and should work. Shortcomings in patent’s authorship screen upset copyright’s competition–protection balance, allowing patents to function as abnormally thick backdoor copyrights, just as shortcomings in copyright’s functionality screen allow copyrights to function as abnormally long and easy-to-obtain backdoor patents.
In addition to its normative assessment of the authorship screen’s importance as a barrier to backdoor copyrights and its descriptive analysis of the statutorily diffuse set of patent doctrines that collectively enforce the authorship screen, this Article presents case studies focusing on architectural innovation, an unstudied zone of overlap on the copyright–patent boundary that illustrates the authorship screen in action.
Keywords: patent, copyright, boundary screen, utility, nonobviousness, architecture
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