42 Pages Posted: 26 Feb 2007
Date Written: February 2007
The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.
Keywords: Intellectual Property, Patents, Property Rights, Takings
JEL Classification: K11, K32
Suggested Citation: Suggested Citation
Menell, Peter S., The Property Rights Movement's Embrace of Intellectual Property: True Love or Doomed Relationship? (February 2007). UC Berkeley Public Law Research Paper No. 965083. Available at SSRN: https://ssrn.com/abstract=965083 or http://dx.doi.org/10.2139/ssrn.965083
By Ken Myers