The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary

Abstract

The title of this paper plays off the title of Thomas Grey's well known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of private property institutions. I take the opposite position and treat this supposed disintegration as evidence of the robust nature of private property rights, not only for land but for all forms of intellectual property. I use this framework to critique modern intellectual property rights cases that impose limits on the terms of private licenses, and the efforts, some of which were embodied in the now dormant Patent Reform Act of 2007 to limit the use of injunctions, damages, and attorney's fees, including at least one effort to shield an important class of admitted infringements of patents from all forms of liability. One broad issue that patent reform initiatives raise concerns the question of whether the per se rules for physical takings carry over to the patent area, which in turn raises the larger philosophical question of the transference of legal principles from the physical to the intellectual realm.

Keywords: property theory, intellectual property, exclusive rights, alienation; licenses, patents, copyright, first sale doctrine, patent exhaustion, takings