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2 - What Is So Special About Intangible Property?

The Case for Intelligent Carryovers

Published online by Cambridge University Press:  05 June 2012

Richard A. Epstein
Affiliation:
University of Chicago School of Law
Geoffrey A. Manne
Affiliation:
International Center for Law and Economics (ICLE) and Lewis and Clark Law School
Joshua D. Wright
Affiliation:
George Mason University School of Law
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Summary

One of the major controversies in modern patent law is the extent to which property right conceptions developed in connection with land or other forms of tangible property can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This chapter defends the thesis that, once the differences in the optimal duration of patents and copyrights is taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property right concepts applicable to land work even better because some of the difficulties in designing a land based system disappear. The short life of patents, for example, obviates the need to create rules dealing with restraints on alienation over time. In addition, this chapter critiques the recent developments that limit the use of injunctions to protect exclusive rights of patent use, in eBay v. MercExchange. In a similar fashion, it notes that the limitations on rights of alienation in spectrum also create major social losses, as does the use of the patent exhaustion rule in the licensing of intellectual property, as applied by the Supreme Court in Quanta v. LG Electronics.

Type
Chapter
Information
Competition Policy and Patent Law under Uncertainty
Regulating Innovation
, pp. 42 - 74
Publisher: Cambridge University Press
Print publication year: 2011

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References

Hunter, Dan, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 Cal. L. Rev.439 (2003)CrossRefGoogle Scholar
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McGowan, David, The Trespass Trouble and the Metaphor Muddle, 1 J.L. Econ. & Pol'y109 (2005)Google Scholar
Epstein, Richard A., Intel v. Hamidi: The Role of Self-Help in Cyberspace?, 1 J.L. Econ. & Pol'y147 (2005)Google Scholar
Epstein, Richard A., What Broadcast Licenses Tell Us about Net Neutrality:Cosmopolitan Broadcasting Corporation v. FCC, in New Directions in Communications Policy 85 (May, Randolph, ed., 2009)Google Scholar

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