Chapter §1.03 Policy Justifications for Patent Protection

• Jurisdiction: United States

§1.03 Policy Justifications for Patent Protection

Scholars have identified four primary theories or rationales for the protection of intellectual property, including patents.⁵⁶ The "natural rights" and "reward for services rendered" theories are grounded on notions of fundamental fairness and doing justice for individuals who innovate. In contrast, the "monopoly profits incentive" and "exchange for secrets" rationales are considered "utilitarian," or economically focused, theories. The utilitarian view seeks to maximize the overall happiness of society at large, rather than focusing on rewarding the individual inventor. The utilitarian theories, rather than natural rights-based rationales, are generally considered to be the most aligned with the U.S. patent system.

[A] Natural Rights

The natural rights (or "deontological") justification, which has most strongly influenced the intellectual property systems of continental Europe, is based on the work of John Locke, the seventeenth-century English philosopher who developed a "labor theory" of property.⁵⁷ Locke believed that God gave the earth to people "in common." All persons have a property interest in their own body and own their own labor. When a person mixes her labor with objects found in the common, she makes it her property. For example, if a person gathers a pile of acorns in a public park, she has mixed her labor with the acorns. By doing so, she has acquired a property interest in that pile of acorns; if another takes away the acorns without permission, it constitutes stealing.

However, the gatherer in this example must not attempt to appropriate all the available acorns. Locke's "proviso" mandates that the right to private ownership is conditional on a person leaving in common "enough and as good" for others. Nor must she take more from the common than she can make use of (i.e., Locke's "nonwaste condition").

Some of the problems with Locke's theory as applied to intellectual property are that it would appear to award property rights that are perpetual and never permit the intellectual property to pass into the public domain. Natural rights theory does not address the central question of balancing proprietary rights against enhancement of the public domain. The theory also fails to grapple with allocation of efforts by multiple innovators; modern scholars recognize that the process of invention is generally cumulative,⁵⁸ meaning that the work of one inventor typically builds on the work of earlier inventors.⁵⁹

[B] Reward for Services Rendered

A second rationale for conveying proprietary rights in intellectual property characterizes these rights as a reward for services rendered. This theory posits that inventors render a useful service to society, and society must reward them for it. An inventor has a right to receive, and therefore society is morally...