Objectivism and the Patent Bargain

by Stephan Kinsella on September 9, 2025

The IP clause in the US Constitution authorizes Congress to enact patent law by authorizing it “to promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.” The Patent Act does this by the so-called “patent bargain“:

The disclosure requirement lies at the heart and origin of patent law. An inventor, or the inventor’s assignee, is granted a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice their invention. If a patent fails to contain such information, then the bargain is violated, and the patent is unenforceable or can be revoked.

In other words, to get the state to issue you a roughly 17-year monopoly privilege, or patent, you have to publicly disclose your invention in the patent disclosure document instead of keeping it secret in the form of a trade secret. This way, once your patent expires, the invention is in the public domain and others who were prevented from competing with you and using this information during the term of the patent are now free to use it.¹

Now it is true that Rand found a way to justify patents being limited in time in her essay “Patents and Copyrights.” (Ironically, or perhaps not, the version of this essay previously online has been removed, with this BS excuse: “Per our agreement with publishers, to make room for other Ayn Rand non-fiction content, this essay has been temporarily removed, but will return in due course.” Shades of Galambos!)² However, she did view patent rights as property rights to which the inventor is entitled. As she wrote, “The government does not “grant” a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it—i.e., the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.” So it occurs to me that a principled Randian who also knows something about how patent law works—most of them do not and do not even know the difference between the different types of IP that they mindlessly support³ —would take umbrage at the patent disclosure requirement (and would thus be happy at how it has been watered down to remove penalties for failing to disclose the best mode).⁴

In other words, if an inventor is entitled to a 17-year patent on his invention, why should he be forced to publicly disclose the details of the invention? Why can’t he just submit it to the PTO, have it examined, but have the disclosure kept secret, as it is now possible to do if the applicant certifies it will not be filed in a foreign country that requires publication? (See Grok summary.) It is true that the inventor can request non-publication but this is only if he gives up the right to file in other countries. Why should he be forced to give up this right? Ideally, shouldn’t every country grant patents to inventors without requiring them to publish it?

In fact, ideally, we would have a one-world government, right?⁵— and thus only one patent system, thus saving inventors the headache and cost of filing in dozens of other countries, which can cost hundreds of thousands of dollars per patent. (See Grok estimate.) Another benefit of one-world government: cheaper IP acquisition and enforcement costs! You only have to file one copyright or patent infringement lawsuit against your competitors! Yaayy!

But seriously, why don’t Randians whine about the patent disclosure requirement as the price they have to pay to get the patent that they deserve? Why don’t they oppose the patent bargain? I think none of them really even understand IP law, and their ideas on IP are so jumbled and confused they don’t even realize why they should oppose it.