Court common law cuts back against statutory bloat---courts have played a key role in evolving copyright and patent law---and to ensure a vital IP System they must continue to evolve law versus the AFF’s statutory regimes.

The evolution of copyright law’s fair use doctrine and of patent law’s nonobviousness requirement illustrates important symbiotic pathways by which IP law has developed and evolved from its terse original formulation. Justice Story crafted copyright’s fair use defense from the general purposes of the copyright system and English case law. Courts evolved this doctrine over more than a century before Congress brought it into the statute – but with the expressed intention that courts would continue to evolve the doctrine.154 Although the early U.S. patent statutes required only that an invention be novel and useful to be patentable,155 the Supreme Court in 1850 read such a separate inventiveness limitation into the statute based on the intuition that the mere substitution of porcelain for wood or metal in the design of a doorknob, even if novel, lacked the requisite “skill and ingenuity which constitute essential elements of every invention.”156 The courts evolved this doctrine over the course of a century.157 The source of the requirement – whether constitutional, statutory, jurisprudential, or some combination – remained somewhat murky.158 After the Supreme Court elevated the nonobviousness threshold to a “flash of creative genius,”159 Congress stepped in and integrated a nonobviousness standard into the statute, but specifically removed the reference to “creative” or “inventive genius.”160 Courts today focus on the statutory text, but they also reference the historical development of the nonobviousness doctrine.161 The courts continue to play a central role in developing these “statutory” regimes. And although the modern statutes have become bloated with detailed and often technical provisions,162 fundamental aspects of the copyright and patent regimes trace back to the original statutory enactments, remain relatively terse, and reflect the judicial gloss and fine-tuning that ensued.163 The mixed heritage of IP law has important ramifications for statutory interpretation. In applying IP law, courts should trace the origin of statutory text or doctrine to determine the proper judicial lens – whether to use a common law approach or to focus narrowly on statutory text. In assessing the provenance of statutory provisions, courts should be open to examining legislative history, especially with regard to codification statutes and other amendments intended to explain the nature and purpose of judicially developed doctrines. This use of legislative history does not force courts to follow any particular mode of statutory interpretation, but rather guides them in determining their own role in applying the law. That use largely sidesteps the more controversial issues surrounding legislative history.164 There is very little reason to suspect that lobbyists in the period from 1950 to 1952 (with respect to the modern Patent Act) or from 1955 to 1976 (with respect to the modern Copyright Act) were distorting the role of judicial doctrine in the evolution of these systems. There is extensive historical and jurisprudential evidence to corroborate those accounts.165 The copyright studies that formed the basis for omnibus reform were thoughtfully prepared, widely vetted, and thoroughly discussed in open sessions. The patent codification and reform processes were carefully conducted and documented. The development of copyright and patent law also informs the growing debate over the treatment of so-called common law statutes.166 It lends support to Professor Margaret Lemos’s skepticism (see Chapter 4) about labeling statutes as “common law” or “ordinary.”167 Rather than distinguishing between two caricatured buckets, courts should recognize that there can be a spectrum of statutory/common law regimes even within the same statute. The patent and copyright regimes are particularly distinctive in their mixed heritage – tracing back to the founding of this nation when courts played a greater role in fleshing out statutes and evolving through various stages of judicial embellishment and tweaking, legislative codification, and transformative technological change. The analogy to the Sherman Act may be apt for particular judicially developed and legislatively delegated features, but does not make sense for some of the highly specified legislative compromises passed within the past few decades. Courts should be mindful of the provenance and distinctive context by which statutes emerge and develop. As this chapter has illustrated, the modern copyright and patent regimes can best be understood as rich mosaics – each comprising detailed and specific statutory provisions, open-ended statutory standards authorizing judicial common law development, and important elements still existing entirely outside of the statutory text. Over more than two centuries of statutory accretion, the source and character of the statutory strata have evolved. As a result, tracing the contextual background of particular provisions is essential to interpreting and applying the copyright and patent laws faithfully. Furthermore, a robust, contextually grounded judicial role is critical to maintaining the vitality of the IP system. For these reasons, courts should be especially careful to trace the provenance of copyright and patent provisions and doctrines to determine the proper interpretive lens in applying these laws.