Intellectual Liability in Context

10 Pages Posted: 24 Dec 2010 Last revised: 29 Dec 2013

John M. Golden

University of Texas at Austin - School of Law

Date Written: December 23, 2010

Abstract

In Intellectual Liability, Daniel Crane reemphasizes that a “right to exclude” is only one part of a Hohfeldian package of rights, privileges, powers, or immunities that government can grant an intellectual property (IP) owner. Crane points out that an overly vigorous right to exclude, one backed up by a strong presumption of injunctive relief against continued infringement, could result in a suboptimal IP package even from the IP owner’s perspective. Drawing on examples of antitrust-influenced behavior of collective-rights organizations and standard-setting organizations, Crane argues that forgoing property-rule treatment in the Calabresi–Melamed sense can be more than compensated, socially and possibly even privately, by IP owners’ gains of privileges and powers to participate in one or more practices of “bundling,” as through a collective-rights organization or standard-setting organization, or through acquisition of large numbers of patents in the manner of a so-called “patent troll.” Crane’s bottom line thus expands on the prescription underlying Louis Kaplow’s “ratio test” of more than a quarter century ago: the optimal package to be granted IP owners should be developed by providing “those rights that grant just enough reward to induce... inventive or creative activity at the lowest social cost possible.”

Suggested Citation

Golden, John M., Intellectual Liability in Context (December 23, 2010). Texas Law Review See Also, Vol. 88, pp. 211-219, 2010; University of Texas Law, Law and Economics Research Paper No. 195. Available at SSRN: https://ssrn.com/abstract=1730224

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

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