Exclusion and Exclusive Use in Patent Law

59 Pages Posted: 20 Aug 2008 Last revised: 4 Jan 2010

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Date Written: August 19, 2008

Abstract

The conventional wisdom is that the definition of patents as property has been long settled - patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent exhaustion doctrine. Significantly, the Supreme Court has invoked such historical doctrine in reversing the Court of Appeals for the Federal Circuit in its many recent patent law decisions.

For this reason, the conceptual break between modern and historical patent doctrine is not simply a matter of philosophical inquiry. Today, scholars and courts believe that patents must secure only a right to exclude as a matter of logical necessity, dismissing the historical statutes and case law as confusion or dicta. Yet, they do not realize that their definition of patents as property is a uniquely modern conception, which follows directly from the legal realists' property theory in land. In identifying this intellectual history for the first time, this Article reveals how the legal realists' theoretical work concerning real property has influenced twentieth-century patent doctrine, and how this may be an under-appreciated factor contributing to the increasingly tumultuous debates over patent doctrine.

Suggested Citation

Mossoff, Adam, Exclusion and Exclusive Use in Patent Law (August 19, 2008). Harvard Journal of Law and Technology, Vol. 22, No. 2, 2009; George Mason Law & Economics Research Paper No. 08-49. Available at SSRN: https://ssrn.com/abstract=1239182

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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