Patent Lawyer and Mentor Opposes Property Rights in Ideas

by Stephan Kinsella on November 23, 2025

Gratifying that my first patent law boss and mentor from 1993–1994, Bill Norvell, has become an anti-IP convert.

A recent email from Bill, and my response:

Stephan, I have spent some time reading your great essays and listening to your pod programs on the concept of intellectual property as property, per se. I agree with all of your conclusions, but I travel a different path to get to the same conclusions. I look at this issue from the vantage point of one, like you, who has helped to acquire government granted “rights “into ideas. I have also looked at the issue from my many years of actual experience in enforcing government granted rights to ideas. This second vantage point is important to an understanding of my reasoning. First, I’d look at this concept from the vantage point of “ideas “. Anyone can have them. For example, I could have an idea about what I want for dinner tonight, or what shirt to put on today. These ideas, and all ideas, are strictly personal. It’s not the ideas that become “property “, but the government granted protection programs that become the property. In other words, ideas are personal to the creator. It is the government granted rights to prevent others from copying or exploring for commercial purposes that provide the property. For example, the government provides patent protection rights for ideas which are novel. The government provides protection under copyright laws for artistic creations. The government provides trademark laws to prevent unauthorized use of ideas for the identification of goods and services from one source. Finally, governments provide laws for the prevention of unauthorized use of trade secrets, under either common law, statutory law, and/or contract law. The flaws in the administration of such a government provided protection are many. For example, in the patent system, the determination of whether an idea meets the statutory requirements for novelty are subjectively determined by an examiner or through an appellate procedure. The patent laws thus require only the opinion of the human intellect, to form the final decision as to which ideas become anointed with a crown of “property rights”. From my experience, this is extremely flawed. For example, in my very first trial of a patent, my opponent brought to the stand a former patent examiner, testifying as an expert witness. When quizzed about what actually happens in a “real life world “he simply testified that he didn’t live in the real world. In addition, the concept of government laws providing a property right to prevent others from practicing a personal idea is flawed in virtually every effort to exercise such legal rights. This starts from an interpretation by attorneys in the construction, for example, of patent claims in an attempt to have them cover infringement of a defendant’s practices. This effort is re-examined by a court, which is required to find the legal meaning of words and phrases used in patterns. This effort is, again, granted under government laws established by the judicial branch of the federal government under the “Alice” case law, again a very subjective analysis. Then a jury takes over and again a very subjective analysis takes place. I could go on and on pointing out flaws in our system of converting ideas into property. To repeat, it is the human subjective analysis that determines whether an idea is worthy of being classified as a property, not the idea itself. Keep up your great work!! Best regards, Bill.

My reply:

***

Hey Bill. Just back from lots of travel and speaking engagements.

A few comments below. I may want to post an edited version of your comments later. I assume you are okay with this. I can’t tell you how surprising and pleasing it is that my very first IP mentor has thought so closely about all this and is honest and sees the problem so clearly. Not many IP attorneys are willing to honestly approach this issue. What a coincidence that I, the world’s leading opponent of IP law, am joined by my first IP mentor. The Death Throes of Pro-IP Libertarianism; Pro-IP “Anarchists” and anti-IP Patent Attorneys

Anyway see comments interspersed below—

On Tue, Nov 18, 2025 at 12:56 PM william norvell <[email protected]> wrote:

Stephan, I have spent some time reading your great essays and listening to your pod programs on the concept of intellectual property as property, per se. I agree with all of your conclusions, but I travel a different path to get to the same conclusions. I look at this issue from the vantage point of one, like you, who has helped to acquire government granted “rights “into ideas. I have also looked at the issue from my many years of actual experience in enforcing government granted rights to ideas. This second vantage point is important to an understanding of my reasoning. First, I’d look at this concept from the vantage point of “ideas “. Anyone can have them. For example, I could have an idea about what I want for dinner tonight, or what shirt to put on today. These ideas, and all ideas, are strictly personal. It’s not the ideas that become “property “, but the government granted protection programs that become the property.

The more I have thought about this, I think there are 3 fundamental mistakes made re IP rights. First, there is Locke’s mistake where he said that the reason you can homestead (appropriate) an unowned resource is that you own your body and therefore your labor, and therefore you own unowned resources you mix your labor with. You don’t own your actions, whether it’s labor or leisure; you own conflictable resources only. On Conflictability and Conflictable Resources; Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action

Locke’s mistake has led to the confused notion that creation is a source of ownership or property rights. It’s not. It’s a source of wealth but not property rights. Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights

In acting, man needs to both employ and possess and use scarce means, and also be guided by useful knowledge–recipes, formula, causal and scientific laws. There can be conflict over the former but not the latter, so in society we adopt property rights to allocate property rights to scarce resources according to first use (homesteading, occupation) and contractual title transfer. Property rights act as normative support to help secure the ability to possess and use the resources.

On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession

These property rights may be enforced with the use of physical force–e.g. in self defense, or by law which uses legal force to defend and secure and protect property rights. Of course physical force applies only to things to which physical force may be applied, namely the same types of things that can be physically employed, used, possessed, grappled with by human actors and also over which there can be physical conflict. Thus all rights are human rights, and all human rights just are property rights. And force can only be applied to physical things just as there can only be physical interference with a physical use of such a resource. This means not only is there no need for property rights in knowledge and ideas, since there can be no conflict in use of knowledge, but that it is impossible to own ideas.

Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession; other posts and articles on the impossibility of “owning ideas.”

Because of these first two mistakes and confusions and muddled thinking about the purpose and nature of property rights and human action, the nature of IP rights is not understood. It is not realized that IP rights are really nonconsensual negative servitudes granted by state fiat legislation, by decree, just like patent grants of old.

When there is an IP right, like patent or copyright, it is not really ownership of information or ideas or knowledge, it is really a disguised reallocation of existing property rights in existing scarce resources. The holder of the copyright can use it to have state force prevent the owner of a printing press from using it to print books. The holder of a patent can use it to have state force prevent owners of factories from making widgets. IP rights thus grant negative servitudes to patent and copyright holders. Unlike contractual negative servitudes (as are common in HOAs for example), IP negative servitudes are not consented to by the owners of the burdened estates. Intellectual Property Rights as Negative Servitudes.

Because of these confusions–about the nature of property, the distinct role of knowledge in action, about the nature of labor and action, and the source of property rights, as well as the statist assumption that legislation is a legitimate means of “making” law (Legislation and the Discovery of Law in a Free Society)—state legal systems classify these state-granted privileges as “property rights.”

In other words, ideas are personal to the creator. It is the government granted rights to prevent others from copying or exploring for commercial purposes that provide the property. For example, the government provides patent protection rights for ideas which are novel. The government provides protection under copyright laws for artistic creations. The government provides trademark laws to prevent unauthorized use of ideas for the identification of goods and services from one source. Finally, governments provide laws for the prevention of unauthorized use of trade secrets, under either common law, statutory law, and/or contract law. The flaws in the administration of such a government provided protection are many. For example, in the patent system, the determination of whether an idea meets the statutory requirements for novelty are subjectively determined by an examiner or through an appellate procedure. The patent laws thus require only the opinion of the human intellect, to form the final decision as to which ideas become anointed with a crown of “property rights”. From my experience, this is extremely flawed. For example, in my very first trial of a patent, my opponent brought to the stand a former patent examiner, testifying as an expert witness. When quizzed about what actually happens in a “real life world “he simply testified that he didn’t live in the real world. In addition, the concept of government laws providing a property right to prevent others from practicing a personal idea is flawed in virtually every effort to exercise such legal rights. This starts from an interpretation by attorneys in the construction, for example, of patent claims in an attempt to have them cover infringement of a defendant’s practices. This effort is re-examined by a court, which is required to find the legal meaning of words and phrases used in patterns. This effort is, again, granted under government laws established by the judicial branch of the federal government under the “Alice” case law, again a very subjective analysis. Then a jury takes over and again a very subjective analysis takes place. I could go on and on pointing out flaws in our system of converting ideas into property. To repeat, it is the human subjective analysis that determines whether an idea is worthy of being classified as a property, not the idea itself. Keep up your great work!! Best regards, Bill.

I agree with you on all these flaws of administering state IP law, especially patent and copyright, but also trademark. To me, these are real but incidental. The problem with the patent system and copyright system is not that examiners are incompetent or that government courts are corrupt or inept or get decisions about novelty (patent) or “fair use” (copyright) “wrong,” it is that the legislated standards themselves are both non-objective and arbitrary, as well as unjust. They are arbitrary (especially for patent and copyright) because they are legislated and made up by legislative decree and fiat and not anchored to the real world of conflict and organically developed private law; they are non-objective because not rooted in scarcity of physical resources or in the possibility of conflict, but instead turn on subjective evaluations and standards.

But most fundamentally these standards are unjust because they amount to transfers of property rights from owners to non-owners by means of the grant of a nonconsensual negative servitude. People complain about “absurd” or ridiculous applications of IP law: incompetent examiners, vague fair use standards, “bad” patents that “should not” have been granted or “abuse” by patent trolls who are “non-practicing entities.” But even if only “good” patents were granted by truly competent examiners with perfect searching ability and only to practicing entities, even if copyright fair use standards were clear, the enforcement of patent and copyright right would still be unjust: the problem with patent law is not bad patents or abuse or trolls; it’s the grant of good patents even on truly novel and non-obvious inventions; it’s the grant of copyright even for really original works of art. It’s the assumption that copying public information may be prohibited by law. Patent Trolls, Bad Patents, and Incompetent Examiners are Not the Problem

Anyway I will write up our exchange later, but always happy to discuss further.