What Is So Special about Intangible Property? The Case for Intelligent Carryovers
Richard A. Epstein
New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School
August 16, 2010
U of Chicago Law & Economics, Olin Working Paper No. 524
NYU Law and Economics Research Paper No. 10-49
One of the major controversies in modern intellectual property law is the extent to which property rights conceptions, developed in connection with land or other forms of tangible property, can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This article defends the thesis that, once the differences in the optimal duration of patents and copyrights are taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property rights concepts applicable to land often work even better for intangible property because some of the difficulties in designing land-based systems disappear. The short life of patents, for example, obviates the need to create rules dealing with restraints on alienation over time. This article also critiques the recent development in eBay v. MercExchange that has limited the availability of injunctions in protecting exclusive rights of patent use. In a similar fashion, the article also notes that the limitations on rights of alienation in the spectrum create major social losses, as does the use of the patent exhaustion rule in the licensing of intellectual property, as applied by the Supreme Court in Quanta v. LG Electronics.
Number of Pages in PDF File: 48
Keywords: real and intellectual property, patents, licenses, injunctions, takings, remediesworking papers series
Date posted: August 18, 2010 ; Last revised: November 8, 2010
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