Before the rise of law and economics, the Supreme Court vigorously enforced the public right to use material in the public domain upon the expiration of utility patents. This right was most notably upheld in Kellogg v. Nat'l Biscuit Co. Recently, numerous Federal Circuit courts have failed to follow the holding of Kellogg. This article discusses the Lockian conception of property, argues that Kellogg was based upon sound Constitutional footing, and suggests that the current Court should follow that Constitutional reasoning, rather than distinguishing the case based on economic theory in its consideration of TrafFix Devices v. Marketing Displays this term.
The Owned Public Domain: The Constitutional Right Not to Be Excluded - Or the Supreme Court Chose the Right Breakfast Cereal in Kellogg v. National Biscuit Co.,
22 Hastings Comm. & Ent. L.J. 265
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol22/iss2/7