Ex Ante versus Ex Post Justifications for Intellectual Property

Intellectual Property

Article Snapshot


Mark Lemley


University of Chicago Law Review, Vol. 71, 2004


This paper looks at the arguments for stronger intellectual property rights.

Policy Relevance

Intellectual property rights should be strong enough to encourage innovation. But there is no reason to make them stronger.

Main Points

  • Traditional theories support granting just enough intellectual property right to encourage innovation.
  • Some new theories argue that intellectual property rights help manage and develop innovation, perhaps supporting much stronger, longer rights.
  • Intellectual property rights give the holder monopoly power, and there seems to be no reason or evidence this leads to better management than a competitive market.
  • The original inventor might not be the best manager.

  • Preventing a product from being used “too much”  does not make sense, since ideas cannot be used up.
  • Markets are needed to discipline errant firms.

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