The Pragmatic Incrementalism of Common Law Intellectual Property
“Common law intellectual property” refers to a set of judge- made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls “pragmatic incrementalism.” It involves the use of pragmatic and minimalist techniques that emphasize: (1) caution in the face of uncertainty; (2) the use of neutral legal standards; (3) customary practices to tailor the regime to different contexts; and (4) balancing the ex ante and ex post effects of adjudication. In working these ideas, courts develop rules that are flexible, context-dependent, and capable of affirming multiple values without looking for a single overarching theory. In the process, the regimes very effectively avoid the problems of uniformity, overbreadth, and ossification. The patent and copyright systems are today in a state of crisis, with scholars and policymakers recognizing the need for a fundamental overhaul. Yet, few have turned to the common law method for solutions. Common law intellectual property, I argue, may provide us with a way forward, by drawing attention to the simple strengths of the common law method and its likely benefits for intellectual property law.