The “Law of Ideas”
Intellectual property law is often called the “law of ideas.” Although primarily a body of federal statutes, intellectual property law encompasses patent, copyright, trademark, and trade secret laws, which include common law and state law.
Collectively, these laws form the mechanism we use to make the trading in intangibles possible in the marketplace. Without the boundaries (the “rules of the road”) created by these laws, the free flow of ideas cannot be harnessed for either the public or private good.
Roots in the U.S. Constitution
The U.S. Constitution grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, sec. 8, cl. 8.
This constitutional provision – often referred to as the “intellectual property clause” – gave Congress the authority to pass federal intellectual property laws (specifically copyright and patent laws) from the very beginning of the Republic. This was an extraordinary power, and one that has been used mightily to promote both the public and private good.
Copyright and Patent Laws
Copyright and patent laws are essentially limited monopolies. They provide authors and inventors the right to exclude others from using their writings and inventions for a limited period of time in exchange for disclosing their original works and inventions to the public.
Their purpose is to provide an economic incentive to encourage authors and inventors to create and innovate. One judge explained that the “economic philosophy behind … grant[ing] patents and copyrights is the conviction that encouraging of individual effort by personal gain is the best way to advance the public welfare through the talents of authors and inventors in ‘science and the useful arts.’” Mazer v. Stein, 347 U.S. 201, 219 (1954). Appealing to a private interest for the public good has been a magic bullet!
Trademarks, on the other hand, are not the result of creativity or innovation, but rather the adoption of a distinctive word or symbol to indicate the source or origin of products (or services). As with patent and copyright law, trademark law provides rights of exclusion; specifically, trademark owners are given the right to exclude others from using the same or similar mark on the same or similar products (or services) and creating confusion among consumers.
It too serves the public and private good – the public by guarding the integrity of products and services bearing a particular mark, and the private by protecting the time, energy, and money invested by a trademark owner from unfair trading practices, e.g. misappropriating or infringing a trademark. Unlike the limited monopolies created by copyright and patent laws, trademarks may be protected in perpetuity (forever) so long as they are properly used in commerce.
Trade Secret Laws
Trade secret law is the least developed category of intellectual property law. Civil (non-criminal) trade secret matters are still governed by a mixed-bag of state laws. In 1996, we made some forms of trade secret theft (economic or industrial espionage) federal crimes, but did not include the ability to pursue a civil action with civil remedies in the legislation. Despite a number of legislative efforts since then, there is not yet a federal civil statute providing a uniform definition of what constitutes trade secret information or how to redress its misappropriation.
Nonetheless, just like other intellectual property laws, trade secret laws provide rights of exclusion. In essence, they provide the owner of a trade secret with the right to exclude others from the unlawful use of their secret. Here also, trade secret laws seek to find balance between an owner’s interest in its trade secret information and the public’s need to know more about the products (and services) it is purchasing.
Intellectual property law in the United States traces its formal roots to the U.S. Constitution and to the English common law before that. It is one of our most important bodies of law related to our economic growth and competitive edge in the global marketplace. Understanding the nature and scope of these laws, how they work, and why we have them, is tremendously helpful to businesses – young and old, small and large – and should be a priority for creators and innovators alike.