by N. Stephan Kinsella **
As Socrates pointed out, the unexamined life is not worth living.
As citizens, lawyers, and, more particularly, as intellectual property
lawyers, we should, from time to time, examine just what it is we
are doing in our lives and careers. It is interesting, for example,
that patent lawyers take for granted the legitimacy of having a
patent system. In other words, most of us think we should have patent
laws and copyright and trademark and trade secret laws, as
well. It would probably surprise many IP lawyers to know that the
legitimacy of IP laws historically has been, and continues to be,
the subject of some controversy, at least in theoretical or academic
circles. Since we are in the business of obtaining protection for
clients under these IP laws, perhaps the legitimacy of IP laws bears
Locke and Bentham
Proponents of IP laws typically use two types of arguments to justify
IP laws such as copyright and patent laws, which I will focus
on here. The first is a Lockean-style natural law or natural rights
argument, which argues that creations of the mind are entitled to
protection just as tangible property is. Part of the motivation
for this theory is fairness IP is brought into being by its
creator, so as a matter of fairness, the creator has a right to
own it and profit from it. The second type of argument is more utilitarian
and wealth-maximization based, and essentially argues that production,
creativity, and innovation in society is maximized by granting monopolies
to writings and inventions so as to "encourage" authors
It's Just Natural
One problem with the natural law approach is that intangible property
such as patents and copyrights is not like tangible property; most
significantly, IP is not naturally "scarce," in the economic
sense. Under Lockean theory, the state of nature contains natural
property, which is economically scarce, meaning that my use of Blackacre
conflicts with your use of Blackacre. Use of such property is exclusive,
since my use excludes yours, and vice-versa. So that scarce property
and resources can be used without potential users eternally warring
over these tracts, ownership is allocated (to the first user who
"mixes his labor" with it, according to Lockean theory;
or to the creator for created goods) so as to solve this problem.
However, were we in a Garden of Eden where land and other goods
were infinitely abundant, there would be no scarcity and thus no
need for property rules. For example, your taking my lawnmower would
not really deprive me of it, if I could conjure up another in the
blink of an eye. Lawnmower-taking in these circumstances would not
be "theft". Thus, classical property rights do not seem
to naturally apply to things of infinite abundance.
Like the magically-reproducible lawnmower, ideas (as implemented
in inventions or creative works, for example) are also not scarce,
at least not in the same way as tangible or physical property. For
example, if I invent a new technique for growing bananas, it does
not take my technique from me if you also grow bananas in this way.
Your use does not exclude mine. We can both use my technique to
grow bananas; there is no economic scarcity and no possibility of
conflict over the use of a scarce resource, and thus no need for
Similarly, if you copy a book I have written, the original (tangible)
book is still there. Thus, books are not scarce in the same sense
as is a piece of land or a car. As Thomas Jefferson, himself an
inventor and the United States' first Patent Examiner, wrote, "He
who receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light
without darkening me." Thus, the argument goes, since use of
another's idea does not deprive him of its use, no conflict over
its use is possible, which undermines the natural-law justification
for property rights in IP.
A Fair Dinkum
As for the charge that it would be unfair to not provide a right
to one's intellectual creations, even advocates of IP do not maintain
that the legal system must reward everyone for every single useful
idea they come up with. For example, philosophical or mathematical
or scientific truths cannot be protected: commerce and social intercourse
would grind to a halt were every new phrase, philosophical truth,
and the like considered the exclusive property right of its creator.
But if it is fair to leave these creators unrewarded (e.g., more
theoretical science and math researchers and philosophers), why
is it unfair to not reward other types of creators (more practical
inventors and entertainment providers)?
Indeed, it could be argued that it is unfair to discriminate between
classes of intellectual creators, by providing one group with IP
rights and the other group with nothing. For example, I can get
a patent on a new mousetrap, but, in one recent case, In re Trovato(1),
the inventor of a new way to calculate a number representing the
shortest path between two points, an extremely useful technique,
was denied patent protection because this was "merely"
a mathematical algorithm. Why the distinction here (a critic might
ask)? Do not both discoveries require creative intellect, and benefit
society? In short, the fairness argument falters, since it cannot
be applied uniformly and consistently without itself causing unfairness
(and virtually no one is willing to provide IP protection broadly
enough to eliminate this perceived unfairness).(2)
The utilitarian defense of IP has also come under attack. Utilitarianism,
founded by Jeremy Bentham, holds that utility, by some measure (such
as wealth or its proxies, creation and innovation) should be "maximized,"
and thus favors legislation that causes certain desired results
or consequences to be produced. The utilitarian theory is based
on the assumption that such creators would not invest the time or
capital necessary to produce such products, if others could copy
them with impunity. This is the common justification patent lawyers
typically give "patents are needed to encourage inventors
to invent". It is also the rationale in the U.S. Constitution's
grant of copyright and patent authority, which provides that Congress
shall have power "To promote [i.e. encourage] the Progress
of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Critics point to several problems with justifying IP on utilitarian
or similar grounds. The first objection is that utilitarianism is
an ends-justifies-the-means philosophy, which is itself problematic.
Horrible violations of individual rights can be perpetrated in the
name of this philosophy, as the history of this bloody century shows.
As for IP, utilitarians hold that the "end" of encouraging
more innovation and creativity is used to justify the arguably immoral
"means" of restricting the could not rely on a near 20-year
Further, some argue that the grant of a patent for processes and
discoveries having practical application skews research and development
away from theoretical R&D. It is not clear that society is better
off with more practical invention and less theoretical R&D.
Additionally, many inventions are patented for defensive reasons,
and much overhead is spent on patent lawyers' salaries and PTO fees,
that would not otherwise have to be spent if there were no patents.
Paying the Bills versus Intellectual
It is not surprising that IP attorneys seem to take for granted
the legitimacy of IP; after all, it pays the bills. This acknowledged
self-interest does not necessarily mean that we are wrong to support
IP; but it does give us cause to be skeptical of the seductive appeal
of what may be makeweight rationalizations. As members of our community
and as participants in the governmental and legal machinery, it
behooves us to recognize our own built-in bias and, on occasion,
to question and reflect on the widely-held justifications that we
hear ourselves sometimes repeating by rote.(4)
*A version of this article previously was published in 1 Pennsylvania
Bar Association Intellectual Property Newsletter 3 (Winter 1998).
The patent law subcommittee invites your comments on this important
issue. A "chat room" has been set up at <www.free-market.net/forums/federalist>.
Please take a moment to read the other posts, and weigh in on this
** The author is a partner in the intellectual property department
of Duane, Morris & Heckscher LLP in Houston, and is adjunct
professor at South Texas College of Law. Email: firstname.lastname@example.org.
The views expressed herein are those of the author alone and should
not be attributed to any other person or entity.
- 33 U.S.P.Q.2d 1194 (Fed. Cir. 1994).
- Except, perhaps, for
Galambosians. See Andrew J. Galambos, Sic Itur ad Astra: The Theory
of Volition: Volume I, Peter N. Sisco, ed. (1999).
- U.S. Const. Art. I, § 8.
- 4 For further discussion of some of the ideas
in this editorial, see Tom G. Palmer, Are Patents and Copyrights
Morally Justified? The Philosophy of Property Rights and Ideal
Objects, 13 Harv. J. Law & Publ. Pol'y 817 (1990), as well
as other articles in same issue (No. 3, Summer 1990) and in Vol.
13, issue no. 1 (Winter 1990) of this journal; Tom G. Palmer,
Intellectual Property: A Non-Posnerian Law and Economics Approach,
12 Hamline L. Rev. 261 (1989); Wendy McElroy, Contra Copyright,
The Voluntaryist (June 1985) and Liberty on Copyright and Patents
(unpublished drafts on file with author); Murray N. Rothbard,
The Ethics of Liberty (1982), at 123-24; Murray N. Rothbard, 1
Man, Economy, and State: A Treatise on Economic Principles (1962),
at 652-60; Wendy J. Gordon, An Inquiry into the Merits of Copyright:
The Challenges of Consistency, Consent, and Encouragement Theory,
41 Stan. L. Rev. 1343 (1989). Symposium: Toward a Third Intellectual
Property Paradigm, 94 Colum. L. Rev. No. 8 (December 1994). A
classic series of essays on economic and other aspects of IP is
Sir Arnold Plant, Selected Economic Essays and Addresses (1974);
see also Edward C. Walterscheid, The Early Evolution of the U.S.
Patent Law: Antecedents, appearing in multiple parts at 76 JPTOS
697 & 849 (1994); 77 JPTOS 771 & 847 (1996); 78 JPTOS
77, 615, & 665 (1996).