Patents Are Property Rights, Not A “Bizarre Regulatory Lobby”

Adam Mossoff,

In a recent Townhall op-ed, Mytheos Holt argues that patents are not property rights like other “natural” property rights in land and tangible goods. As his primary foil, he uses my seven-minute talk at CPAC last month on the unique American approach to securing property rights to innovators, which Holt calls a “bizarre regulatory lobby.”

Unfortunately, Holt is not alone in using such confused rhetoric. Today, we are in the midst of a full-blown moral panic about intellectual property (IP) rights. Strangely, some conservatives and libertarians – the very people who should be defending all property rights – have jumped on this populist bandwagon. Luckily, leading conservative groups such as the American Conservative Union and Phyllis Schlafly’s Eagle Forum recognize the importance of these fundamental property rights, which is why the ACU invited me to speak at CPAC.

My brief remarks at CPAC were based on my decade-plus research on the natural rights justification for patents and other IP rights (see here, here, here, here, and here), and on how this theory was applied in the uniquely American approach to securing patents as property rights (see here, here, and here). To take but one example of this American approach, a Supreme Court Justice said in 1845 that “we protect intellectual property, the labors of the mind, . . . as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.”

On the basis of this classic moral justification for all property rights — that people should have the fruits of their productive labors secured to them as their property — early American legislators and judges secured stable and effective property rights to innovators and creators.

This was part-and-parcel of American exceptionalism. The U.S. was the first country to protect true property rights in inventions and creative works. It was also the first country to recognize patents and copyrights in its Constitution, and to provide for their protection.

laws_small Patents Are Property Rights, Not A “Bizarre Regulatory Lobby” Government

As the Founding Father James Madison wrote in 1792, the right to property “embraces every thing to which a man may attach a value and have a right,” and “Government is instituted to protect property of every sort.” As Madison and most early American judges recognized, the natural right to property was never limited—as Mr. Holt claims—to only physical land and other tangible goods. Even John Locke recognized in 1695 that copyright is property (see here).

Inspired by Locke and natural rights philosophy, our Founders did something no other country did before: they protected patents under the Constitution as private property rights (as I explain here). They recognized that patents are necessarily part of the security provided by government for the rights to life, liberty, and property—all types of property.

As a matter of first principles, individuals should own the fruits of their productive, value-creating labors. This moral principle applies equally to the farmer who harvests crops, the person who builds a new home, and Samuel Colt’s invention of the repeating firearm. It also applies to Thomas Edison’s world-changing inventions and to the tens of thousands of other patented inventions that have driven America’s innovation economy for over 225 years.

This key moral insight is entirely missing from Holt’s argument, and that is no accident. If we are entitled to the valuable creations of our productive labors, then to borrow Holt’s phrasing, the role of government is to recognize and secure these property rights.  

Turning to his specific arguments, Holt identifies problems at the U.S. Patent Office as evidence that patents are not property, but this is truly bizarre. Imagine if free market advocates at the turn of the twentieth century asserted that property rights in factories were not real property rights, and they pointed to out-of-control and easily abused bureaucratic agencies as evidence for this claim. Even worse, imagine them joining in common cause with populists and leftists to undermine property rights and suppress the enjoyment of economic liberty.

This is a bizarre image, but we are seeing its modern-day equivalent, as Holt and others join a new 21st-century chorus rising up against property rights in inventions and against the markets for innovation and creativity these property rights create. Thankfully, my CPAC audience has not heeded this call (voting 82% in favor of stable and effective IP rights).

Holt seems to enjoy analogies to the DMV, so I’ll close with my own. Does the fact that I need to register my car at the DMV each time I move to a different state somehow make my car less than a normal piece of “property?” Surely not, and Holt would not think differently. If the DMV denies my registration due to bureaucratic hassles or regulatory abuses, this does not negate the moral principle that productive, value-creating labor is the genesis of property rights in cars—and inventions.