Feldman on the Subconscious in IP Law

Robin Feldman has published an article called "The Role of the Subconscious in Intellectual Property Law," 2 Sci. & Tech. L. J. 2 (2010). Here is the abstract:

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. While we are often quite aware of what we are doing and how we have come to do it, such is not always the case. Various human drives can lead us, for example, to be perfectly convinced that our actions are appropriate or that our motives are pure, despite considerable evidence to the contrary.

The human mind is particular important in the realm of intellectual property. The stuff of intellectual property, that which we choose to protect, flows from processes of the human mind as it interacts with the natural world and with creations that have come before. Without knowing any more, one might imagine that subconscious processes of the human mind could come to play a role in the unfolding doctrines.

This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, the piece argues that although such impulses may be treated differently in different areas of Intellectual Propety law, the variations can be understood in the context of the moral stance adopted in the doctrinal area. Where the connection between the moral stance of the doctrine and the approach taken by the doctrine is muddled, it may signal a doctrine in disarray. As an example, the piece analyzes the doctrine of Inequitable Conduct in patent law, concluding that this area of law has lost its bearings.