What Is So Special about Intangible Property? The Case for Intelligent Carryovers
48 Pages Posted: 18 Aug 2010 Last revised: 7 Dec 2014
Date Written: August 16, 2010
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.
Keywords: real and intellectual property, patents, licenses, injunctions, takings, remedies
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