Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine
Abstract: Modern patent theory dismisses commercialization of patented inventions as either irrelevant to patent law or a necessary evil in which society pays monopoly deadweight losses in exchange for public disclosure of new inventions. This conventional wisdom, however, does not account for hoary patent doctrines that have long secured to inventors their rights to commercialize the valuable property in their inventions. This paper identifies this divide between theory and doctrine by explaining the positive property framework employed by nineteenth-century courts in creating the fundamental commercialization doctrines in patent law. In fact, legislatures and courts imported into patent law the conceptual terminology and doctrinal requirements used to explain how landowners commercialized their rights to use and dispose of their real property. This is significant insofar as patents are no longer defined in terms of such substantive rights, but rather as securing only a right to exclude. This creates a mismatch between patent theory and patent law, which has led to indeterminacy in the commercialization doctrines originally framed in terms of securing to patentees their exclusive rights to use and dispose of their inventions in the marketplace. In rediscovering the positive framework that animates the commercialization doctrines in patent law, modern patent theory can also rediscover the fundamental role of commercialization as a policy justification for the patent system.
