Private Law Theory

Abstract:
In this Essay, we offer an integrated theory of intellectual property defenses. We demonstrate that all intellectual property defenses can be fitted into three conceptual categories: general, individualized and class defenses. A general defense is the inverse of a right in rem. It goes to the validity of the intellectual property right asserted by the plaintiff, and when raised successfully it relieves not only the actual defendant, but also the public at large, of the duty to comply with the plaintiff’s intellectual property right. An individualized defense, as we define it, is the inverse of an in personam right: it helps a defendant who raises it to fend off the infringement claim against her, but leaves the plaintiff’s right intact, and hence allows the plaintiff to assert it against other defendants. Class defenses form an in-between category. They can be analogized to inverse quasi-property rights in that they create an immunity zone for a certain group of users. However, group defenses do not act to invalidate the right of the plaintiff and thus the benefit to the public from a successful showing of a class defense is more limited than that arising from the vindication of general defenses …

Parchomovsky, Gideon and Stein, Alex, Intellectual Property Defenses (April 1, 2013). Columbia Law Review, Vol. 113, 2013; U of Penn, Inst for Law & Econ Research Paper No. 13-11; Cardozo Legal Studies Research Paper No. 386.

First posted 2013-04-11 09:19:50