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Limitations on Congressional Power: Purpose and Novelty/Non-Obviousness 45
2.) Limitations on Congressional Power: Purpose and
Novelty/Non-Obviousness
Graham v. John Deere Co.
383 U.S. 1 (1966)
[Please read sections I–IV of the opinion, which can be found on page 746.]
Questions:
1.) Give the most expansive possible reading of the holding of Graham in terms of the
limitations set by the Copyright and Patent Clause on Congress’s power. Now the most
limited. Which is correct, in your view? Is there some middle position?
2.) Does this ruling apply only to Congress’s patent legislation or does it apply equally
to patent and copyright? Why?
3.) Does Graham also offer interpretive guidance to courts seeking to interpret intellectual
property legislation? If so, how would you describe that guidance?
3.) Limitations on Congressional Power: Fixation & the Interaction
Between Clauses
PROBLEM 2-2
CONSTITUTIONAL INTERPRETATION.
Read Moghadam and Martignon and answer the following questions:
1.) Why do we have a fixation requirement in copyright? Offer reasons that
resonate with a.) the Copyright Clause’s goal of encouraging creative activity that
leads to actual access to the works for citizens and consumers, followed by an
entry of the work into the public domain b.) the need to make copyright consistent
with the First Amendment c.) the issue of “formal realizability”—defining the
metes and bounds of the right so that one can tell what activities do and do not
infringe. Are any of these concerns implicated here?
2.) You are a plaintiff challenging the constitutionality of the anti-bootlegging
statute discussed in Moghadam and Martignon—both the civil and criminal
provisions. What specific challenges should you bring? How should the Court rule?
3.) More generally, does the Intellectual Property Clause ever constrain
Congress’s power under the Commerce clause? When and under what
circumstances?