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Form in Intellectual Property Law

David Booton

This book sets out to expose, analyse and evaluate the conflicting conceptions of legal judgment that operate in intellectual property law. Its central theme is the opposition between law-making by way of the creation of generally applicable rules and law-making done at the point of application through case-by- case decisions tailored to the particulars of individual circumstances. Through an exploration of form, the analysis sets out to provide insights into how intellectual property law achieves a balance between various competing interests.
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Chapter 4: A conflict at the foundation

David Booton

Extract

In something as fundamental as marking out the boundaries of protectable subject matter, form matters. The certainty of a rule depends on the context over which it exercises control. So far as the single foundational context of defining that which is protected, invariably the security of expectation that rules generate is compromised by the simultaneous operation of a standard that occupies the same territory as the rule. Whether we are talking of patents, copyright or trade mark, we are left with the question of why, in this context, there are rules at all given that their effects are embraced entirely by the operation of a standard. Keywords: subject matter; definition; rules; standards; security

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