Cotter on Legal Pragmatism, Intellectual Property, and Standard Essential Patents

My article Legal Pragmatism and Intellectual Property Law, 7 Zeitschrift für Geistiges Eigentum/Intellectual Property Journal 291-317 (2015), is now out and available from the publisher here.  (It is a revised version of a paper I originally published in 2013 in an edited volume titled Intellectual Property and the Common Law (Shyamkrishna Balganesh ed., Cambridge University Press), which is also available on ssrn here.)  The new version, which I presented at a conference organized by Professor Michael Grünberger in Bayreuth, Germany last year (see blog posts here and here) concludes with some thoughts on the question of whether courts should award injunctions for the infringement of SEPs, and if not which body of law--patent remedies, competition law, contract, or abuse of right--is best suited for achieving this result.  Here is the abstract:

The legal pragmatism movement that came to prominence in the 1990s adopted a skeptical attitude toward “foundationalism” – the idea that any one body of law can be adequately explained by some grand, foundational theory, or united by a single goal or value. The pragmatists' embrace of anti-foundationalism, in turn, emphasizes the virtues of concepts such as value pluralism, practical reason, and what Cass Sunstein refers to as “incompletely theorized agreements” for reaching consensus on particulars when opinions differ at a higher level of abstraction. This article argues that a legal pragmatist approach to intellectual property (IP) law has both strengths and weaknesses. Among its strengths are its recognition of the competing values that animate IP policy and doctrine; its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights; and its appreciation for the common law method of incrementally adapting doctrine to changing technological environments. At the same time, however, a legal pragmatism that naively embraces totality-of-the-circumstances tests may induce overcompliance on the part of IP users. An approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one's assumptions, predicting consequences, and testing results; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism's anti-foundationalist stance itself into a foundational principle of IP policy. The article concludes with a brief example of the author's pragmatic law-and-economics methodology as applied to an issue of great contemporary relevance, namely whether courts should award injunctions for the unauthorized use of standard-essential patents.