Intellectual Contract and Intellectual Law

54 Pages Posted: 7 Jun 2018 Last revised: 2 Aug 2018

Date Written: June 7, 2018


Technological change is altering the nature of contract toward a greater focus on intangible assets. The direction of technological change toward greater connectivity, interoperability, mobile communications, the Internet of Things (IoT), artificial intelligence (AI), virtual inventions, and cooperative research and development (R&D) has profound implications. This article develops a new framework that I refer to as “Intellectual Law” to address this shift. The article introduces the concept of “Intellectual Contract” (IC) to characterize agreements for invention, innovation, and technology adoption. The article also introduces the concept of “Intellectual Tort” (IT) to describe liability including but not limited to misappropriation of trade secrets and infringement of patents, trademarks, and copyrights. Intellectual Law provides a consistent framework for IC, IT and Intellectual Property (IP). The article observes that legal protections for inventors cannot rely solely on what has proven to be a flawed combination of IT and IP. The article argues that greater emphasis on IC would improve both IT and IP. Because IC protects expectation interests it is essential for creating, developing, sharing, and applying intangible assets. IC generates gains from trade that enhance the benefits of inventors, innovators and adopters beyond what can be achieved by IT and IP alone.

Keywords: Contract, Intellectual Property, Tort, Infringement, Damages, Liability, Patent, Invention, Innovation, Adoption, Technological change

JEL Classification: K, K11, K12, K13, L14, O3, D8

Suggested Citation

Spulber, Daniel F., Intellectual Contract and Intellectual Law (June 7, 2018). Northwestern Public Law Research Paper No. 18-16, Northwestern Law & Econ Research Paper No. 18-13, Available at SSRN: or

Daniel F. Spulber (Contact Author)

Northwestern University - Kellogg School of Management ( email )

Kellogg Global Hub
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Evanston, IL 60208
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