Intellectual Property in the New Technological Age

Intellectual Property

Article Snapshot


Mark Lemley, Peter Menell and Robert Merges


Fourth Edition, Aspen Publishers, 2003.


This textbook surveys key cases and laws relating to intellectual property (IP).

Policy Relevance

New technologies give rise to many new cases addressing difficult issues in IP law.

Main Points

  • Types of intellectual property law include trade secret protection, patent law, copyright, trademarks and “trade dress.”

  • Some state law also affects IP, though most IP law is federal.

  • Key topics at the cutting edge of IP law include biotechnology and software.

  • Patent law courts and the patent office continue to struggle with the issue of what kinds of ideas can be patented, the question of “patentable subject matter.”
    • The recently decided case In Re Bilski case addressed whether patents could be granted on business methods. Many software patents are business method patents.

  • Recent changes in patent law affect whether a patent will be denied because the idea behind it is considered obvious.

  • The patent law rule that someone who infringes a patent “willfully” pays extra damages is controversial, because it can discourage innovators from looking at others’ patents to remain ignorant of patents related to their work.

  • In copyright law, many new cases involve copyrights on digital works, and the doctrine of fair use, which allows some copyrighted works to be used without permission of the copyright owner.

  • The Internet and e-commerce raise many new issues in trademark law, including:
    • Trademark dilution (when a mark loses protection because it used too widely, like “zipper”), merchandising (the use of trademarks like university logos on merchandise) and fair use. 
    • The recent case Google v. Rescuecom asks whether a firm’s trademark is violated when search engines display competitors’ sites after a search for the firm’s name.

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