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.
Author holds copyright (despite incorrect statement in published text). Permission is given for any use in return for a citation.
Before the rise of law and economics, the Supreme Court decided several cases involving patent holders' attempts to use trademark doctrines to slow down competitors after the expiration of their utility patents; in each of these cases, the Court enforced a public right to use material in the public domain. To give one famous example, Kellogg Co. v. National Biscuit Co., the "shredded wheat case," came to the Court after the expiration of a product and process utility patent on that once-innovative breakfast cereal. The Court held that a competitor could freely copy the product's name and its well known pillow-shaped form because both had entered the public domain when the patent expired. While disagreeing on the showing required to allow copying, five United States circuit courts have recently unanimously declined to follow Kellogg. This article argues that Kellog is correct. Article One, Section Eight, Clause Eight of the United States Constitution allows Congress to create individual ownership in intellectual "property" only to the extent that such privatization respects the public's constitutional right to the public domain. The public domain is "owned" in inalienable, indivisible common by the public, not the federal government. The form of this ownership is a right not to be excluded. Therefore, neither the courts nor Congress have the power to redraw the public domain's boundaries in pursuit of some now-current economic theory.
Malla Pollack. "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." Hastings Comm/Ent 22 (2000): 265.
Available at: http://works.bepress.com/malla_pollack/15