Private Law and the Future of Patents

21 Pages Posted: 17 Feb 2017

See all articles by Oskar Liivak

Oskar Liivak

Cornell University - Law School

Date Written: February 17, 2017


As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is an alternative. Patent theory can be adjusted instead. This article points to an emerging innovation-focused basis for patent law that is explicitly private law. Not only does that lead to consistency, the change also offers a desperately needed promise of private law. Private law institutions offer the potential for extremely low administration costs. Private law institutions function smoothly without the need of chronic, expensive judicial intervention. Today the litigation related costs of the patent system threaten to capsize the whole patent system. Private law offers a promising, needed alternative.

Keywords: H.L.A. Hart, internal point of view, innovation, markets, private law, patent

Suggested Citation

Liivak, Oskar, Private Law and the Future of Patents (February 17, 2017). Harvard Journal of Law and Technology, Vol. 30, Cornell Legal Studies Research Paper No. 17-09, Available at SSRN: or

Oskar Liivak (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-1715 (Phone)

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