Feldman: Patents don’t define property rights; they are an “opportunity to bargain.” Don Corleone nods.

I’m currently reading  law professor Robin Feldman’s new book, Rethinking Patent Law (despite its ridiculously high kindle price of $34.37, a price possible only because of the copyright monopoly). Feldman’s thesis is that it’s untenable to view a patent as defining a property right, for various reasons. For example, analogizing the patent claim to property rights in land, as defining “metes and bounds” to some invention’s boundaries, makes no sense because the patent claim uses words which “describe an invention that by definition did not exist before and that will be compared against things that may not exist when the words are chosen.”

I think she has a point, and this helps highlight why patent rights are completely artificial and aberrations that are contrary to the nature of the normal property rights that underpin a free market economy. But how should patents be viewed, then, if not as property rights? Feldman thinks that a patent should be viewed as an “opportunity to bargain”—”an invitation to enter into the process of negotiating a definition of rights”. As she writes:

This book suggests that the entire conceptualization of patents as establishing the boundaries of the rights granted is simply wrong. Rather than delineating a patent holder’s rights, a patent creates no more than an opportunity to bargain. It is an invitation to enter into the process of negotiating a definition of rights. One can think of this conceptualization as the bargain aspect of patents …

[A] patent could never grant a definitive and clearly bounded set of rights. Rather, a patent grants some form of an opportunity—a seat at the bargaining table, with certain rules in place.

I haven’t finished the book yet, but Feldman’s conceptualization of how patents really work doesn’t seem off-base to me (legally, I think patent and copyright are best described as involuntary negative servitudes; see my post Intellectual Property Rights as Negative Servitudes). But Feldman’s way of looking at it helps highlight the thuggish, extorting nature of patents. One can readily imagine an analogous case of a mafia thug demanding protection money from a local businessman, and saying, “Aw, hey, I ain’t shakin’ you down! This ain’t no shakedown…! Think of it as …. as … an ‘opportunity to bargain'”.

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Feldman also appears in the short video below.

Feldman’s comments near the end is a bit misleading. She says that most innovation builds on technology that has come before—this is true, but of course, nothing is wrong with this. That is the nature of progress. But she says that because of this, and because there are so many millions of patents out there, “one can often look and find something out there to say well, this is what you took your idea from.” But in most cases of patent infringement, copying is not even alleged and probably does not exist. (See Patent defendants aren’t copycats. So who’s the real inventor here?) The problem is that you might be infringing a patent you never heard of, when you never copied it or learned anything from it (or even from the competitor’s products covered by the patent). The idea that you have no right to make a product or innovate unless you do it in a vacuum is ridiculous.

Moreover, yes, there are millions of patents, but the majority are expired. So there is nothing wrong with copying those that have expired already. that’s part of the alleged point of the patent system—to encourage people to disclose their inventions, so that after the patent expires, the public can use the ideas in it freely.