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16 Chi.-Kent J. Intell. Prop. 85 (2016)
Abuse of Supreme Court Precedent: The Historic Kinship

handle is hein.journals/jointpro16 and id is 85 raw text is: 


                          DAVID  W.  BARNES1


     In Sony Corp. ofAmerica v. Universal City Studios, the Supreme Court
applied a doctrine formulated for patent law to an issue arising in copyright
law. The Court supplied a rationale for doing so by identifying a historic
kinship between patent and copyright law based on fundamental  goals of
intellectual property law. The Court considered how the rationale applied in
the particular factual context involved. The  Court  cautioned  that the
propriety of extending a doctrine developed  in one intellectual property
regime to another depends on the particular legal issue involved.
     Despite the importance of ensuring that new rules are consistent with
the underlying  rationale for intellectual property law and the Supreme
Court's cautionary  language, lower courts regularly quote the historic
kinship as a justification for applying rules from one regime to another.
This article surveys all of the cases referring to Sony's historic kinship
and finds that most lower courts abuse the precedent by failing to consider
the rationale and heed the caution. The risk created by this misapplication
of Supreme  Court precedent is that new intellectual property rules may be
inconsistent with the underlying goals or inconsistent with other doctrine.

    1. Distinguished Research Professor of Law, Seton Hall University School of Law.


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