Intellectual Property and the Law of the Land

Intellectual Property

Article Snapshot


Peter Menell


Regulation, Vol. 30, No. 4, pg. 64, Winter 2008


This article considers the relationship between real or physical property law and intellectual property law.

Policy Relevance

Arguing that intellectual property is like physical property can lead to confusion and harmful polices for physical property.

Main Points

  • This article is written in response to Professor Richard Epstein’s comments on Menell’s earlier publication “Intellectual Property and the Property Rights Movement.”
  • Using long standing law that is applicable to real or physical property to govern intellectual property could result in a physical property law changing in undesirable ways.
  • Creating a comparison between real property and intellectual property may harm the current real property law structure.
  • Suggests several fundamental changes to the patent system:

    • Treat different types of patent applications with different levels of scrutiny.
    • Change the possible remedies following patent litigation.
    • Conform patent laws to the individual needs of each industry.
  • Short of an overhaul of the patent system, increasing the courts’ flexibility in determining the proper remedies will allow the court to better handle the diverse nature of patent claims.
  • At present the remedy awarded by the court for patent infringement is generally a monitory award and sometimes a court order preventing the infringer from using the patented technology. Giving the court more flexibility would allow them to tailor solutions to each individual case.

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