The Paradox of IP

Abstract

A central reason for having an IP system (over a prize or grant system) is the assumption that government actors lack the capability to make assessments of IP value. Yet the reality is that judges make assessments of IP value all the time. I call this seeming contradiction the “paradox of IP.” This Essay does not attempt to offer a solution to this paradox. Rather, my argument is that the IP paradox is illuminative of many IP debates, including debates about IP scope and remedies. Most fundamentally, it illuminates the longstanding debate between those who regard IP as a form of public regulation versus those who regard IP as a form of private property. From the perspective of the IP paradox, the property/regulation debate is about how much fine-tuned control the government is able to, and should, exercise over IP rights. The property/regulation debate is intense and unsettled because it reflects the underlying conflict between the founding anti-calibration premises of the IP system and the empirical reality that our actual IP systems feature pervasive judicial calibration. Without resolving the underlying paradox, we cannot resolve the property/regulation debate.

Keywords: calibration, claim construction, injunction, damages, copyright, intellectual property, IP paradox, market valuation, patent, private property, public regulation, remedies, reward, social value, paradox of intellectual property

JEL Classification: K11