Contrived Conflicts: The Supreme Court Versus the Basics of Intellectual Property Law

17 Pages Posted: 2 Aug 2004

See all articles by F. Scott Kieff

F. Scott Kieff

George Washington University - Law School; Stanford University - Hoover Institution on War, Revolution and Peace; McKool Smith


Asked by conference organizers to consider the impact of the Supreme Court on intellectual property this millennium, this essay offers the view that the Supreme Court's intellectual property decisions by its present members generally are premised upon what may be viewed as contrived conflicts among bodies of law. Proceeding from this faulty foundation, the Court's efforts to resolve those conflicts subsequently have generated bodies of judge-made law that frustrate in important ways the basic statutory framework of intellectual property law. Examples of cases employing this problematic approach include Bonito Boats, Dastar, Warner-Jenkinson, Festo, TrafFix, and Holmes. Avoiding the contrivances not only would have left intact congressional action that the Court has not held to have been improper in its own right, but it also would have better promoted the normative goals these regimes were designed to achieve. Far from suggesting any particular business outcome in any of these cases, the essay proceeds from a comparative institutional analysis to show how decisional frameworks different from the ones the Court used would better achieve the basic goals and institutions of the particular statutory regimes of intellectual property law at issue in these cases.

Keywords: Intellectual Property, IP, Patent, Trademark, Copyright, Supreme Court

JEL Classification: K11, K20, K21, K29, K39, O31, O33, O34

Suggested Citation

Kieff, F. Scott, Contrived Conflicts: The Supreme Court Versus the Basics of Intellectual Property Law. William Mitchell Law Review, Vol. 30, 2004. Available at SSRN:

F. Scott Kieff (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4644 (Phone)

Stanford University - Hoover Institution on War, Revolution and Peace ( email )

434 Galvez Mall
Stanford, CA 94305-6010
United States
650-720-5158 (Phone)

McKool Smith ( email )

1999 K Street, NW
Suite 600
Washington, DC DC 20006
United States
202-370-8306 (Phone)

HOME PAGE: http://

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information