David H. Blankfein-Tabachnick,
Intellectual Property Doctrine and Midlevel Principles,
101 Cal. L. Rev. 1315
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss5/5
Recent scholarship on intellectual property ("IP") law argues that doctrinal and theoretical sophistication in IP requires an understanding of "midlevel" principles, purportedly constitutive of IP's positive law. Proponents of this line of scholarship claim these principles serve as a bridge, connecting IP doctrine and practice with deeper foundational philosophical principles. They assert that such midlevel principles-the principles of proportionality, nonremoval, dignity, and efficiency, for instance-explain, predict, and justify IP cases. According to this scholarship, IP doctrine, case outcomes, and statutes are suffused with midlevel principles. In turn, the scholarship treats midlevel principles as consistent with broadly conflicting foundational accounts of property entitlement, from Lockean liberalism on the economic right, to Rawlsian egalitarianism on the left. The result is an account of IP law that unifies practice and the positive law with facially conflicting accounts of foundational property theories. This Essay argues that such claims to IP unification-however revolutionary-are untenable. Drawing from prominent IP cases, including cases addressing the patentability of DNA, this Essay demonstrates that midlevel principles are not rigorously embodied in the positive law of IP and therefore cannot serve to explain or predict case outcomes. Further, these midlevel principles conflict with important liberal "foundational" accounts of property, thereby calling into question the justificatory force such principles might hold. Moreover, contrary to Professor Robert P. Merges's view, different foundational principles, whether maximizing wealth, net aggregate value, or the position of the least well-off, will yield different substantive outcomes in IP cases. Accordingly, this Essay shows that any project conjoining this set of midlevel principles with maximizing distributive principles cannot be sustained. A sophisticated understanding of IP, its theory, and crucially its legal doctrine and practice, does not, and should not, include midlevel principles understood to be consistent with such variously competing foundations. Instead, this Essay acknowledges that courts deciding IP cases often invoke forward-looking foundational principles, whether aimed at utility or distributive justice.