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A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that will govern much of the world. The result of this struggle will affect not only access to innovation in the Asia-Pacific, but also across Africa and other parts of the world that depend on generic medicines from India, which has been called the “pharmacy to the developing world.” Surprisingly, the agreement that includes China as a pillar may result in stricter intellectual property rights than those mandated by the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Perhaps even more surprisingly, such TRIPS-plus rights will be available in the RCEP states to the United States and European companies equally by somewhat recondite provisions in TRIPS. In sum, the RCEP draft erodes access to medicines and education across much of the world.

INTRODUCTION I. IDENTITY POLITICS A. From Redistribution to Recognition B. The Property Turn in Identity Politics C. The Identity Turn in Intellectual Property II. INTERNET PROTOCOL A. The Technology of [...], A quarter century ago, Margaret Jane Radin interrupted the hegemonic law and economics discourse on property with a theory of personhood. And the New Jersey Supreme Court declared in the historic case of State v. Shack that 'property rights serve human values.' From these our modern 'social relations' theory of property was born. Now, the pundits declare that 'intellectual property has come of age.' But is intellectual property philosophically and theoretically mature enough to face the world? Unlike its cousins property law and the First Amendment, which bear the weight of values such as autonomy, culture, equality, and democracy, in the United States intellectual property is understood almost exclusively as being about incentives. To put it bluntly, there are no 'giant-sized' intellectual property values. But there should be. Intellectual property has grown, perhaps exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Indeed, with full compliance to the TRIPS Agreement now required in all but the world's very least developed countries, bringing with it patents in everything from seeds to drugs, intellectual property law becomes literally an issue of life or death. Despite these real-world changes, intellectual property scholars increasingly explain their field through the lens of economics alone, evidence of Amartya Sen's observation that '[t]heories have lives of their own, quite defiantly of the phenomenal world that can be actually observed.' The theory is behind the practice. On the ground, underground, and in the ether, intellectual property is spurring what the New York Times says 'could be the first new social movement of the century.' I show that in case after case, from MGM v. Grokster, to new licenses from the Creative Commons for developing nations, to the rise of Internet auteurs of fan fiction, mash-ups, and machinima, to efforts to deliver medicines to the world's poor, to demands for ''Geographical Indications' for sarees and other crafts of the developing world, and to the nascent global movement for 'Access to Knowledge,' traditional economic analysis fails to capture fully the struggles at the heart of local and global intellectual property law conflicts. This Article builds from these examples to lay a foundation for a cultural analysis of intellectual property. I offer '[IP.sup.3]' as a metonym. The twentieth century closed with the rise of identity politics, the Internet Protocol, and intellectual property rights. I suggest that the convergence of these 'IPs' begins to explain the growth of intellectual property rights where traditional justifications for intellectual property do not. [IP.sup.3] reveals intellectual property's social effects and this law as a tool for crafting cultural relations. Call it the ripping, mixing, and burning of law.

Design--which encompasses everything from shape, color, and packaging to user interface, consumer experience, and brand aura--is the currency of modern consumer culture and increasingly the subject of intellectual property claims. But the law of design is confused and confusing, splintered among various doctrines in copyright, trademark, and patent law. Indeed, while nearly every area of IP law protects design, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions. To address this lack of coherence, this Article provides the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trademark, and patent law--what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac-Man to Louboutin shoes to the iPhone. In so doing, we identify existing doctrines and principles that inform a normatively desirable law of look and feel that courts and Congress should extend throughout IP law's protection of design. We argue that design law should protect elements of look and feel but remain sensitive to eliminating or mitigating exclusive rights in response to evolving standardization, consumer expectations, and context. Notably, our normative conception of design protection sometimes departs quite starkly from how courts have expansively conceptualized look and feel as protectable subject matter. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can erode innovation, competition, and culture itself. [ABSTRACT FROM AUTHOR]

Design patents have recently burst onto the intellectual property stage, but they are surprisingly underdeveloped for a body of law that is more than a century and a half old. Design patents are, quite simply, a body of law without design: there is little coherent theoretical underpinning for this long overlooked form of intellectual property. Now, as design patents are poised to assume greater prominence in the legal and economic realms, the time is ripe for examining myriad justifications for exclusive rights in design in order to develop a richer theoretical foundation for this body of law. To that end, this Article draws from statute, doctrine, legislative history, and academic commentary to identify various theoretical justifications for design patents related to promoting progress, beautifying the human environment, rewarding creative labor, and reducing consumer confusion and promoting distinctiveness. We critically examine the cogency of these justifications and identify hidden tensions among them. Our ultimate aim is to help develop a body of design patent doctrine that is more accountable to theory. We conclude that even the most persuasive and defensible justifications for design patents counsel a limited right at best. [ABSTRACT FROM AUTHOR]

Design patents have recently burst onto the intellectual property stage, but they are surprisingly underdeveloped for a body of law that is more than a century and a half old. Design patents are, quite simply, a body of law without design: there is little coherent theoretical underpinning for this long overlooked form of intellectual property. Now, as design patents are poised to assume greater prominence in the legal and economic realms, the time is ripe for examining myriad justifications for exclusive rights in design in order to develop a richer theoretical foundation for this body of law. To that end, this Article draws from statute, doctrine, legislative history, and academic commentary to identify various theoretical justifications for design patents related to promoting progress, beautifying the human environment, rewarding creative labor, and reducing consumer confusion and promoting distinctiveness. We critically examine the cogency of these justifications and identify hidden tensions among them. Our ultimate aim is to help develop a body of design patent doctrine that is more accountable to theory. We conclude that even the most persuasive and defensible justifications for design patents counsel a limited right at best. [ABSTRACT FROM AUTHOR]

A foreword to the "University of California, Davis Law Review" is presented which discusses the career of the late University of California, Davis School of Law professor Keith Aoki.