Keith Aoki
University of Oregon School of Law
University of California at Davis School of Law

Balancing Act: The Intellectual Property Jurisprudence of Justice O’Connor

While Justice O’Connor did not author an Intellectual Property opinion after 1991, her remarkable opinions from 1981 to 1991 in the areas of trademark, copyright and patent epitomized balance, practicality and pragmatism and continue. to influence the direction of Supreme Court opinions in the area of Intellectual Property in the Wal-Mart v. Samara, TrafFix v. MDI and even the Dastar v. Twentieth-Century Fox cases.  O’Connor’s jurisprudence exemplifies a choice facing conservative jurists when characterizing IP regimes: is there a tight linear relation between broader and higher levels of IP protection and levels of IP production/innovation? OR should IP protection be considered the exception against a baseline assumption of free competition (including an entitlement to copy unoriginal, subpatentable and nondistinctive aspects of copyrighted, patented and trademarked works)?  Justice O’Connor’s opinions in these areas have some interesting things to tell us how to draw the line between these two possible characterizations.