06-sterckx

ABSTRACT. Three attempts are usually made to justify patents: natural rights,distributive justice, and consequentialist arguments, all of which I contest. Thenatural rights argument is traced back to John Locke, defender of the ‘labourtheory of property,’ who essentially holds that persons have a right to prop-erty insofar as they have mixed their labour with it, and insofar as they haveappropriated natural things without exhausting them or taking more than theirshare. Yet, the inventor’s mixing of labour is often the last step of a longer his-torical process, and patents seem to encourage waste, since they restrict the useof an idea. The distributive justice argument holds that patents reward the ini-tiative of inventors – without this reward, ‘free riders’ would be able to com-pete unfairly; the exclusivity granted by patents corrects this hole in the freemarket. However, our current system does not necessarily reflect this princi-ple; it is difficult to clarify the criteria on which an inventor deserves a reward;unsuccessful inventors and basic researchers also invest much initiative, andyet are not rewarded; it is unclear that justice should reward someone by grant-ing them the exclusive right to determine what is done with knowledge; andno link exists between the social usefulness of an invention and the scope ofprotection granted by a patent. The consequentialist justification holds thatpatents encourage innovation, and the disclosure of knowledge. Although it isclear that patents encourage inventions, it is not clear that they encourageprogress – they may even limit progress by restricting use of previous knowl-edge. As for the disclosure of knowledge: such knowledge is hard to keepsecret in the first place, and patent offices grant overly broad patents. In con-clusion, this paper offers some suggestions concerning the true costs of thepatent system.

KEYWORDS. Patents, natural rights, distributive justice, consequentialism,innovation, knowledge

The Moral Justifiability of Patents

Sigrid SterckxUniversity of Ghent / FWO-Flanders

ETHICAL PERSPECTIVES: JOURNAL OF THE EUROPEAN ETHICS NETWORK 13, no. 2 (2006): 249-265.© 2006 by European Centre for Ethics, K.U.Leuven. All rights reserved. doi: 10.2143/EP.13.2.2016633

INTRODUCTION

Apatent is a certificate delivered by or on behalf of the government,confirming that the object of the patent is new, nonobvious, and

industrially applicable, and that the patent application contains a suffi-ciently detailed disclosure of the invention.

Patents grant extensive rights. If the object of the patent is a product,the patentee has the right to prevent others from making, using, offeringfor sale, selling, or importing the product for one of these purposes. Own-ers of a process patent have the right to prevent others from using theprocess, as well as from using, offering for sale, selling, or importing forone of these purposes, at least, the product obtained directly through theapplication of the process.1 These rights are enforceable in court.

The monopoly rights of patentees are limited in time – in most coun-tries a patent is valid for a period of twenty years from the date of appli-cation – and in space, i.e., limited to the jurisdiction of the patent officethat issued – a the patent.

Attempts to justify the patent system can be based on three grounds:(1) natural rights, (2) distributive justice, and (3) utilitarian (economic)arguments. This article will briefly explain and then criticise each of thesearguments.

THE NATURAL RIGHTS ARGUMENT

Locke’s ‘labour theory of property’

According to this argument, man has a natural property right to his ideasand society is obliged to enforce that right. Therefore, the use of ideaswithout the authorisation of the owner should be regarded as theft.

Discussions of the natural rights argument often refer to John Locke’sinfluential ‘labour theory of property,’ which he formulates in Chapter 5of his Second Treatise on Government (1690).2 Locke starts from two basic

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propositions to establish how men might come to have a property righton things which God gave “to mankind in common.” According to thefirst proposition, the preservation of mankind is a fundamental law ofnature – it is God’s will. From this, Locke infers that man has a naturalobligation to ensure his preservation. This implies that man has a naturalright to his preservation,3 and to the means necessary for his preservation(e.g., meat and drink).4

The second proposition is that God gave the earth “to mankind incommon.”5 However, for man to enjoy the fruits of the earth, for thosefruits to be at all beneficial to any particular man, there must to be a wayto appropriate these fruits so that others can no longer claim them.6 Lockealso asserts that everyone has a property right over his own person andhence also over the labour of his body and the work of his hands.7 Thisbrings him to his famous explanation of the origin of property rights: theappropriation of a thing occurs by man applying his labour to it, by mixingthe thing with his labour. By means of his labour he adds something of hisown to the thing and this way he excludes others from having a right to it.

For such acquisition of property, the consent of the other “common-ers” is not required, Locke maintains.8 Appropriation can never amountto robbery of others because every one has the right to “his share” andno more than that. “His share” corresponds with what he can use. Theconsent of others could only be required if the rights or liberties of oth-ers are being violated and this cannot be the case if no one appropriatesmore than “his share.”9

However, Locke specifies two provisos that must be met in order forthe appropriation to be justifiable. The first condition is the “enough andas good” condition: there must be “enough, and as good left in commonfor others.”10 Thus, things may only be appropriated if, afterwards, a suf-ficient number of the same or similar things remain (similar also in termsof quality – the remainder must be just as good). The second condition isthe ‘non-waste’ condition. Man is not allowed to appropriate more thanhe can use (even if he made the things in question himself).11


STERCKX – THE MORAL JUSTIFIABILITY OF PATENTS

Patents and the ‘labour theory’

Is Locke’s property theory applicable to intellectual property, or morespecifically to patents, and if so, which implications does it have in thiscontext? The well-known libertarian philosopher Robert Nozick, who haselaborated a so-called ‘entitlement theory,’12 which is partly based onLocke’s property theory, raises the following important question:

Why does mixing one’s labor with something make one the owner of it?Perhaps because one owns one’s labor, and so one comes to own a pre-viously unowned thing that becomes permeated with what one owns.Ownership seeps over into the rest. But why isn’t mixing what I own with whatI don’t own a way of losing what I own rather than a way of gaining what I don’t?13

If I own a can of tomato juice and spill it in the sea so that its mole-cules (made radioactive, so I can check this) mingle evenly throughoutthe sea, do I thereby come to own the sea, or have I foolishly dissi-pated my tomato juice?14

If one accepts that mixing labour with something occasions the cominginto existence of a property right, the question remains as to the boundariesof that property right. How can one decide what exactly has become theproperty of the person who performed the labour? This question can alsobe put in terms of the value of the result. A distinction should be madebetween the value attributed to the object of the labour and the value attrib-uted to the labour itself (in other words, the added value). Determining theproportionality of each of these values in respect of the total value of theobject to which labour has been applied would seem to be very difficult.This weakens the justificatory strength of the labour theory of property.

Another problem is that ‘intellectual objects’ usually stem from ideasof predecessors. The labour of these predecessors also forms a compo-nent in the total value of the final result – a component whose valuevaries case by case. This has important implications for the question whois entitled to the value of the final result. As Edwin Hettinger explains:



A person who relies on human intellectual history and makes a smallmodification to produce something of great value should no morereceive what the market will bear than should the last person neededto lift a car receive full credit for lifting it. If laboring gives the laborerthe right to receive the market value of the resulting product, this mar-ket value should be shared by all those whose ideas contributed to theorigin of the product. The fact that most of these contributors are nolonger present to receive their fair share is not a reason to give theentire market value to the last contributor.15

The question also arises as to whether Locke’s two provisos apply in thecontext of intellectual, abstract, intangible objects (as opposed to tangi-ble objects). As for the second proviso – man may only appropriate asmuch property as he can use – the question arises, e.g., whether waste canoccur in the case of ideas. It seems unlikely that an idea as such could be‘wasted,’ but the possibilities offered by an idea can be. If someoneacquires an intellectual property right on an idea and does nothing withit, the ‘non-waste’ provision would seem to be violated. If something isleft unused by the appropriator, while others need it, the waste is all thegreater. One aspect of the patent system that can certainly induce wasteis that, in its present form, it does not oblige patent holders to ‘work’(exploit) their invention. The history of the patent system shows that thishas not always been the case in industrialized countries, and in most devel-oping countries, a ‘working requirement’ for patented inventions hasexisted until recently (or continues to exist).

Even if a patent is exploited, waste can occur. For the result of grant-ing a patent is that the patentee can put restrictions on the use of theinvention. Since a characteristic feature of the objects of intellectual prop-erty rights is their so-called ‘non-exclusive’ nature (the fact that they canbe used by many people simultaneously), limiting their use artificially canindeed amount to waste. The extent of the waste would seem to dependon the extent to which others need the invention in question.

Locke’s first proviso – the appropriation of things is only permit-ted if, afterwards, a sufficient amount of the same or similar things



remain – has been applied by Robert Nozick to the rights conferred bya patent. Nozick begins by observing that, if an object becomes some-body’s property, the situation of everyone else changes because thatobject can only be used with the owner’s permission. According to Noz-ick, this change does not imply that the situation of everyone else actu-ally worsens. This is a fundamental issue for him: “The crucial point iswhether appropriation of an unowned object worsens the situation ofothers.”16 He believes this is not necessarily so and provides the follow-ing example:

If I appropriate a grain of sand from Coney Island, no one else maynow do as they will with that grain of sand. But there are plenty ofother grains of sand left for them to do the same with. Or if not grainsof sand, then other things. Alternatively, the things I do with the grainof sand I appropriate might improve the position of others, counter-balancing their loss of the liberty to use that grain.17

However, Nozick’s arguments do not seem convincing in the case ofpatents, for several reasons.

First, the proposition that a sufficient number of objects will remainfor others to use is not valid for anything covered by a patent. A patentincludes one or more claims containing a description of the product orprocess in question. Every other product or process that fits the descrip-tion is also covered by the patent. Moreover, the product or process neednot fit the description in every detail. An ‘equivalent’ product or processis also covered by the patent.18

Second, as to Nozick’s proposition that, if not enough samples of aspecific object remain for others to use, sufficient samples of another objectwill be available, it can be argued that this is immaterial if that specificobject is exactly the one the others need; the fact that they can no longeruse that object as a result of the existence of a patent does imply that theyare worse off. In theory, a serious application of the patentability require-ment of ‘novelty’ should ensure that no patent can be granted for things



used by others (‘in public use’) at the time of the patent application.However, reality is often quite different.

Third, as to the statement that the situation of others can beimproved as a consequence of what the owner does with the object, andthat this can compensate for the fact that the others are no longer allowedto use the object, it should be repeated that patent owners are under noobligation to exploit their invention. Even when they do decide to exploitthe invention, the use of the invention by others is still forbidden.

Nozick argues that the existence of a patent does not deprive othersof anything, since the object of the patent would not exist if the inven-tor hadn’t been there.19 However, it can be assumed that at some stagesomebody else would have come up with it. This could be a reason forputting a time limit on patent rights by calculating the time it would takesomeone to invent the same thing in an independently.20 It seems likelythat, if the protection period would be determined on this basis, in mostcases this period would be significantly shorter than under the currentpatent system.

Referring to natural law as a justification for the granting of patentsis also problematic for several other reasons, which we cannot elaboratehere. For instance: certain categories are excluded from patentability, thevalidity of a patent is limited in time and space,21 independent inventorscannot use their invention if somebody else has already patented it,22

patents can be declared void, and, in some cases, patent owners can beforced to grant a licence to third parties or to the government.

The distributive justice argument

According to a second type of justification for the patent system, basedon considerations of distributive justice, it is only fair that inventors arerewarded because they do society a service. The establishment of a patentsystem is justified because it would be unfair to allow people a ‘free ride’at the expense of others who apply themselves to the act of inventing.



‘Free riders’ are people who did not invest time or money in the devel-opment of an invention and it is therefore unacceptable that they wouldbe allowed to compete with the inventor under normal market condi-tions. In order to reward inventors and to protect them against ‘freeriders,’ society should grant them exclusive rights to their inventions.

Although this argument may seem intuitively appealing, not a singleplausible interpretation of ‘distributive justice’ would yield a patent sys-tem like the one we currently have. Some of the problems with this argu-ment are similar to the problems involved in the natural rights argument,e.g., the treatment of independent inventors. However, different issuesarise as well. Without going into detail, the following problems should bementioned.

First, there are two possible grounds for reward: the extent of theeffort and the value of the result. Which of these two criteria should deter-mine whether or not a person deserves a reward? The value of the result isoften influenced by factors on which the person has no impact, such asluck. Giving a greater reward to people whose products have greater socialvalue might be justified on consequentialist grounds, e.g., if it is neededas an incentive, but this has nothing to do with giving a person what shedeserves.23 The extent to which someone has made an effort is obviouslymore difficult to determine than the value of the result of her efforts, butthis is a pragmatic argument which cannot be decisive in a framework ofdistributive justice.

Does the patent system take into account the extent to which aninventor has tried? The patentability requirement of ‘nonobviousness’could give the impression that this is indeed the case. However, inven-tors who have spent a lot of time and money on research that ultimatelyproduced nothing are not rewarded under the patent system. If oneaccepts the principle that efforts must be rewarded, then unsuccessfulinventors who have made efforts also deserve a reward.

A second problem is that findings in fields which are excluded frompatentability – e.g., discoveries of scientific principles – can also require



significant efforts and/or represent a great service to society. Is it fair thatpeople who work in these fields are not rewarded? It could be arguedthat distinguishing between cases that are created and cases that are discov-ered is thoroughly sensible since both cases lead to different ethical intu-itions.

If someone merely discovers a good, we do not feel that he has sostrong a claim to it as someone has to a good that she has created.Both sorts of claims have historically justified property rights, but cre-ation seems intuitively to be a stronger justification. Of course, bychoosing difficult cases, where a great deal of labor is invested in dis-covering a good and a small amount of labor is invested in creating agood, we can diminish the clarity of our intuitions. However, taking rel-atively straightforward cases, the discovery of a good does not seem tocreate so strong a right as the creation of a good.24

A third question is whether the unequal distribution of, or the unequalaccess to, information, which results from the granting of patents, is notunfair. Within a consequentialist framework, the unequal access to infor-mation could be justified by referring to the ‘encouragement effect’ it has(if people expect that they will have control over the use of the informa-tion that they produce, more information will be produced and this is inthe interest of society at large). However, this kind of argument cannotbe invoked in a context of distributive justice; what matters here is thequestion as to whether granting rights of ownership on information isfair: does justice require that inventors are rewarded with patents, allow-ing them to decide who may use the information, or does it require thateveryone can get equal access to information?

Another important issue concerns the fact that patents are only onepossible reward mechanism; there are also other possibilities. From thepropositions that justice requires that inventors be rewarded and that thegovernment must intervene in order to guarantee these rewards, it doesnot follow per se that a patent system must be established. Hettinger cor-rectly notes that the argument that an inventor deserves a reward does not



demonstrate that inventors deserve an exclusive right of ownership ontheir invention:

The mistake is to conflate the created object which makes a persondeserving of a reward with what that reward should be. Property rightsin the created object are not the only possible reward. Alternativesinclude fees, awards, acknowledgements, gratitude, praise, security,power, status, and public financial support.25

Someone who agrees with the two above-mentioned propositions couldjust as well defend a system of financial bonuses to reward inventors.Proposals for a bonus system as an alternative to patents are almost asold as the patent system itself. A frequently-used argument for such a sys-tem is that it could achieve a greater proportionality between merit andreward. The most important counterargument has always been that bias,arbitrariness and corruption would flourish in such a system.

The fact that inventions do not originate in a vacuum also weakensthe distributive justice argument for the patent system. Research is moreand more a question of collaboration between different people. Inventorsdo not only build on ideas from colleagues or other contemporaries;inventions often come about through the fact that people have used ideasand inventions of predecessors. Hence, an important criticism of the patentsystem is that it only rewards those who apply the ‘finishing touch’ towork carried out by others; that it only rewards those who take the laststep to practical applicability, which is unfair.

Finally, an important question in a distributive justice framework iswhether the reward offered by patents meets the requirement of propor-tionality. In a system based on distributive justice, every inventor is sup-posed to be rewarded according to his specific merit. However, under thepatent system, no link whatsoever exists between the social usefulness ofan invention on the one hand and the period of protection (the ‘length’)and the scope of protection (the ‘width’) of the patent issued on the otherhand. All patents are valid for twenty years irrespective of the usefulness



of the invention in question and irrespective of the effort required for thedevelopment of the invention.26 Admittedly, it would be very difficult todetermine the proper level of reward fairly on a case-by-case basis.

Another problem relating to the proportionality of the usefulness ofan invention and the size of the reward is the frequent issuing of patentswith overly-broad claims – i.e., claims which are disproportionate to theactual contribution made by the inventor.

THE CONSEQUENTIALIST JUSTIFICATION OF PATENTS

The third candidate for the justification of the patent system entails twoarguments: (1) The incentive to invent and innovate argument: without theprospect of an exclusive right to use the invention, and hence a possibil-ity of recouping the money invested in the development of the invention,too little inventing would be done. The patent system offers inventors anindispensable incentive. (2) The incentive to disclose argument: the patent sys-tem encourages inventors to disclose their inventions instead of keepingthem secret. Thanks to the patent system, technological information isdisseminated and this promotes technological progress, which in turn fos-ters economic growth.

The consequentialist justification takes the most prominent place inthe debate on the patent system. Also, this is the main argument that hasbeen used to convince developing countries to strengthen their patentlaws. In order for this justification to be convincing, three things need tobe proven: (i) that the patent system encourages inventions and innova-tions, (ii) that no better alternative system exists to achieve this, and (iii)that the encouragement of inventions and innovations can itself be justi-fied on consequentialist grounds. Moreover, if the patent system turnsout to be the most suitable model, it must be shown that the advantagesof this system outweigh its costs. We cannot comment on all thesequestions here. After looking at the ‘incentive-to-invent-and-innovate’



argument and the ‘incentive-to-disclose’ arguments a bit more closely, wewill briefly criticise these arguments. We will conclude with some obser-vations on the costs of the patent system.

The ‘incentive-to-invent-and-innovate’ argument

A researcher or an investor never knows in advance which inventions willbe successful. And if an invention turns out to be successful, in theabsence of a patent system it can be copied by competitors. Hence, theprice must be reduced and the investor does not have an opportunity toregain his investments, let alone make a profit. Therefore a ‘special’ incen-tive is required so that enough people would be prepared to invest inresearch and development. This is because knowledge has the character-istics of a so-called ‘public good.’ Since the market does not offer an effi-cient solution for the production of ‘public goods,’ government interven-tion in the production of knowledge is required.

Knowledge has three characteristics which are usually ascribed to‘public goods’: (i) it can be used by several people at the same time; (ii) itcosts a lot to produce knowledge; but (iii) once knowledge has been pro-duced, the marginal costs of reproduction are low.

The failure of the market in the production of ‘public goods’ can besolved in three ways: subsidies (e.g., a prize system or a system of researchgrants), direct production by the government (e.g., laboratories run by thegovernment or agricultural research stations), and monopolies (e.g.,patents).27 The third solution – the creation of intellectual property rights– is not necessarily the best, as intellectual property rights can limit thedissemination and use of knowledge.

Many proponents of the ‘incentive-to-invent-and-innovate’ argumentwould probably agree that, ideally, inventions should be disseminated aswidely as possible and used as early and as intensively as possible in orderfor society to be able to reap the full benefits of new inventions. How-ever, patents have the opposite effect: the use of patented inventions is



limited and their price can be kept artificially high. Advocates of the‘incentive’ argument remark, however, that for inventions to be at all prac-ticable, they need to be developed first. According to this line of reason-ing, this implies that the dissemination of inventions must be limited.

In this context Joan Robinson talks of a ‘paradox of patents’:

The justification of the patent system is that by slowing down thediffusion of technical progress it ensures that there will be moreprogress to diffuse. … Since it is rooted in a contradiction, there canbe no such thing as an ideally beneficial patent system.28

The availability of patents does result in more inventions; this is a factwhich should not be questioned – but it does not prove that the patentsystem promotes technological progress. For the advantages of patentsmay well be cancelled out by the limitation of the dissemination ofpatented inventions. The question is: which of the two trends is thestrongest? It takes more than theoretical reasoning to answer this ques-tion, yet empirical research on the economic effects of the patent systemremains scarce and inconclusive.

When evaluating the ‘incentive-to-invent-and-innovate’ argument, weshould not look at the totality of inventions developed, but rather weshould ask what portion of the totality of inventions would have beendeveloped later or not at all if patents had not been available or if patentprotection had been weaker. Only inventions which were developed exclu-sively or earlier due to the availability of patents can be put down to thepatent system. For many inventions, neither is the case. On the otherhand, the use of patented inventions that also would have been carried outin the absence of a patent system is limited by the patent system.

The ‘incentive-to-disclose’ argument

The patent system is said to encourage inventors to disclose their inven-tions instead of keeping them secret. The reason for this is that inventors



have to disclose sufficient information about the invention in the patentapplication. Thanks to the patent system, proponents of this argumentclaim, technological information is spread. After the expiration of thepatent, the information becomes part of the public domain.

The granting of patents is often described as a kind of ‘social con-tract’: society grants the inventor a temporary monopoly in return forwhich the inventor discloses his secrets. Without patents, the argumentgoes, technological information would be kept secret or disseminatedmuch later. This line of reasoning represents patenting as an ‘altruisticalternative’ for trade secret protection. However, the proponents of thisargument seem to be overlooking a few things.

First, it is often difficult to keep inventions secret for a long time. The‘secrets’ behind some inventions can easily be uncovered once an inven-tion is brought to the market. Second, the requirement of sufficiency ofdisclosure is often not taken seriously by patent offices. Patents withoverly broad claims are granted, as noted earlier.29 Such patents discour-age rather than encourage invention and innovation.

The costs of the patent system

Jeremy Bentham may have claimed that the patent system “produces aninfinite effect and costs nothing,”30 but in reality the costs are immense.Consumers pay artificially high prices for patented products and processes.Admittedly, some inventions have come about thanks to the availabilityof patents, but consumers must pay a higher price for all patented inven-tions. The patent system allows for the suppression of inventions, asexploitation of patented inventions is not obligatory. As well, the num-ber of lawsuits involving patents is constantly increasing. Obviously, thishas an effect on the real costs of the introduction of innovations. More-over, it produces the perverse effect that resources that would normallybe spent on research are now diverted to pay lawyers and to cover legalcosts. The result of the issuing of unduly broad patent claims is that the



‘latitude’ for researchers who want to improve existing (and patented)products and processes is significantly restricted.

Significant resources are invested in attempts to circumvent existingpatents. The current patent system stimulates the phenomenon of ‘invent-ing around.’ From an economic perspective, this is problematic becauseit stimulates too much investment in research and development. The issuehere is whether the patent system encourages too much investment inresearch and development, rather than preventing too little investment.However, the ‘optimal’ level of investments in research and developmentappears to be one of the things economist cannot determine. As a mat-ter of fact, it seems that economists cannot (yet) tell us that much aboutthe effects of the patent system in the ‘real world.’ Very little empiricalresearch exists on the economic effects of the patent system. The find-ings of studies that are available31 give rise to serious questions about thestrength of the consequentialist justification of the patent system.

Thus, each of the arguments that can be invoked to justify the patentsystem involves several problems. Moreover, empirical research on theeconomic effects of the system is scarce and raises many questions. Yetin the past two decades, patent rights have been strengthened significantly.One explanation for this trend is the enormous influence of corporations,particularly from sectors such as pharmaceuticals, chemicals and ICT, onthe creation of regulation in the field of intellectual property rights.32

Another explanation seems to be the existence of a ‘collective faith’ in thebenefits of intellectual property rights – a collective faith that clouds ourability to evaluate this system seriously. As Pamela Samuelson notes:

The modern faith in intellectual property does not seem likely to beshaken soon, primarily because that faith is supported by such evidenceas high levels of innovation, high levels of investment in innovation,and the concomitant prosperity. The intellectual property laws may nothave been responsible, but most observers believe that those laws haveplayed a part. If intellectual property law is stifling research or steeringresearch in the wrong direction, our collective faith may keep us fromrecognizing it.33



NOTES

1. See art. 28 (‘Rights Conferred’) of the WTO-TRIPS Agreement (Agreement on TradeRelated aspects of Intellectual Property rights, 1994).

2. See John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge Uni-versity Press, 1988), 285-302.

3. Locke, II, V, 25.4. Ibid.5. Ibid.6. Locke, II, V, 26.7. Locke, II, V, 27.8. Locke, II, V, 28.9. Locke, II, V, 36 and II, V, 46.10. Locke, II, V, 27.11. Locke, II, V, 31. See also Locke, II, V, 37 and II, V, 38.12. See Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), 160: “Who-

ever makes something … is entitled to it. The situation is not one of something’s getting made,and there being an open question of who is to get it. Things come into the world already attachedto people having entitlements over them.”

13. Ibid., 174-75 (emphasis added).14. Ibid., 175.15. Erwin C. Hettinger, “Justifying Intellectual Property,” Philosophy & Public Affairs 18 (1989)

1: 38.16. Nozick, 175.17. Ibid.18. Pursuant to the so-called ‘doctrine of equivalents’ which is applied by most patent offices.

See Robert P. Merges, Patent Law and Policy. Cases and Materials, 2nd ed. (Charlottesville: Michie1997), 917-18. This doctrine is applied especially eagerly in the United States.

19. Nozick, 181.20. Nozick acknowledges that a patent does deprive independent inventors. He claims that

independent inventors should have the right to use their invention (182).21. Patents granted in a patent system built on the basis of the natural law argument could

be expected to be perpetually valid (or at least until the death of the patent holder) and to beenforceable worldwide.

22. The exclusion of independent inventors may be justifiable on consequentialist grounds- by referring to the incentive function of the system, which would be eroded if independentinventors were allowed to lay claim to the invention. But a justification of the exclusion of inde-pendent inventors on the basis of natural law is problematic since under natural law independentinventors have the same natural property right to an invention as the inventor who applied firstat the patent office.

23. Hettinger (1989), p. 42.



24. Patrick Croskery, “The Intellectual Property Literature: A Structured Approach,” in:Owning Scientific and Technical Information – Value and Ethical Issues, ed. Vivian Weil and John Snap-per (New Brunswick: Rutgers University Press: 1989), 270.

25. Hettinger, 41.26. Several developing countries have traditionally provided different protection periods

depending on the industrial sector, e.g., shorter protection for inventions in the food sector. Asa result of the implementation of the WTO-TRIPS Agreement, protection periods of less than 20years are no longer allowed.

27. In many countries, several mechanisms are used simultaneously. For a discussion ofeach of these mechanisms in the case of production of knowledge: see Paul A. David, “Intellec-tual Property Institutions and the Panda’s Thumb: Patents, Copyrights, and Trade Secrets in Eco-nomic Theory and History,” in: Global Dimensions of Intellectual Property Rights in Science and Technol-ogy, ed. Mitchel B. Wallerstein, Mary Ellen Mogee, and Roberta Schoen (Washington, DC: NationalAcademy Press, 1993), 32-36.

28. Joan Robinson, The Accumulation of Capital (Homewood, Ill.: Richard D. Irwin, 1958), 87.29. See, e.g., Sigrid Sterckx, “European patent law and biotechnological inventions,” in:

Biotechnology, Patents and Morality, ed. Sigrid Sterckx, 2nd edition (Aldershot: Ashgate, 2000) 21-25.30. Jeremy Bentham, A Manual of Political Economy (1785), in: Works of Jeremy Bentham, pub-

lished under the supervision of John Bowring, 11 volumes (Edinburgh, 1843), vol. III, 71.31. For a discussion of existing research as well as various references, see Keith E. Maskus,

Intellectual Property Rights in the Global Economy (Washington, DC: Institute for International Econom-ics, 2000).

32. Susan Sell, Private Power, Public Law - The Globalization of Intellectual Property Rights (Cam-bridge: Cambridge University Press, 2003).

33. Pamela Samuelson, “Innovation and Competition: Conflicts over Intellectual PropertyRights in New Technologies,” in: Owning Scientific and Technical Information – Value and Ethical Issues,ed. Vivian Weil and John Snapper (New Brunswick: Rutgers University Press: 1989), 179.



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