Patents Are Property Rights

By Mossoff, Adam | Freeman, June 2013 | Go to article overview

Patents Are Property Rights


Mossoff, Adam, Freeman


Factual inaccuracies and historical misconceptions abound in debates about patents. So let's first clear the air. As a preliminary matter, it's important to recognize that early American legislators, judges, and commentators invoked Lockean natural rights theory in recognizing that patents rightly secured the "fruits of labors" of inventors. This isn't surprising, as John Locke himself embraced inventions and writings as property rights. He endorsed copyright as property in 1695 and he approved of "invention and arts" in his chapter on property in the Second Treatise.

Some libertarians also assert that historically patents were statutory (monopoly) grants that were distinguished from "common law" court decisions that secured property rights in land, but this is myth masquerading as history. We should reject it for the same reason we reject historical myths like the "robber barons," because each uses a false account to bootstrap a normative argument. In fact, in the early American republic, courts secured patents as fundamental property rights: Judges created and applied to patents the same legal doctrines used to secure real estate, expansively protected patents, and provided constitutional protections to patents.

In a short essay, of course, I cannot fully justify patents as property rights, but I can briefly summarize the case. At root, the justification for property rights is a justification for all types of property rights, such as farms, buildings, factories, oil and gas, radio spectrum, corporations, and inventions, among others. All "property" arises from the fact that one must produce the values required for a flourishing human life. (Here, "value" is not an economic concept, it is a moral concept, referring to those things a person produces to live a flourishing life.) Thus, the "right to property" defines the sphere of freedom necessary to create, use, and dispose of these values.

All production, whether of factories, cars, computers, or new biotech drugs, necessarily starts with a process of conceptually identifying both the values one seeks to create and the means to create them. This was Locke's genius, as he was the first to recognize, albeit imperfectly, that property arises from the moral act of productive labor. Ayn Rand's genius was to recognize that man's mind is his basic means of survival, that production is the application of reason to the problem of survival, and thus that all property is logically intellectual property at root.

Rand's ethical theory makes explicit why property rights have never been limited to just physical objects: The genius and success of Anglo-American property law is that it recognized that property rights secure values, not physical objects. American courts have long recognized that "property . …

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