This essay is adapted from two much longer essays. They are “Economic Value of Patents As a Direct Result of Supply and Demand, Not Labor Inputs” and “Is the Pirating of Intellectual Property Just a Form of Intra-Industry Competition?”
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| U.S. Patent Design No. 264,109. George Lucas’s design patent on toys with Boba Fett’s likeness. |
In this philosophic debate over the legitimacy of intellectual property rights (IP rights or IPRs), IPRs’ detractors rely on a psychological bait-and-switch. IPRs’ opponents proclaim that private property rights are only applicable to values that are “scarce.” Then they say that ideas are not scarce at all. And that is true for (a) impractical, fantastical, scientifically unsound ideas and (b) ideas that might be practical and sound in a very generalized context but have yet to be fleshed out to the point where the idea can be practicably implemented. Those sorts of ideas are easy to come by.
But patents and copyrights are not claims of ownership over either type of idea. A utility patent protects a detailed, illustrated, and scientifically accurate set of instructions for producing a unit for some good or service that is to satisfy some marketplace demand. Copyrights and design patents protect the exact, specific, aesthetic form of a design, proscribing duplication that is either exact or near-exact-with-tiny-perfunctory-and-cosmetic changes.
Owning General “Ideas” Versus the Specifics of What You Originated
The specific original designs in patents and copyrights are “scarce” for two reasons:
- A party must invest considerable time and effort and material resources to produce a new design that plausibly possesses the potential to satisfy marketplace demand profitably. Very few parties are willing to take on this financial risk. And if these parties are not even reimbursed on these costs by the consumers who make use of their inventive design or artwork, these parties will scale back on their innovation, resulting in still fewer original designs being made available in the future.
- As a consequence of the variability in human experience, even when separate parties implement the same basic idea, the final result of each party’s effort ends up with its own unique qualities.
IP’s detractors advance an argument that purports to follow this syllogism. In category A is “ideas,” category B is “that which is not scarce,” and category C is “that which cannot be rightful private property.” Then, applying Aristotle’s syllogism “If A = B and B = C, then A = C,” IP’s detractors put forth this:
- Ideas (A) are not scarce (B). (And this is definitely true of impractical ideas and still-only-vague ideas.)
- That which is not scarce (B) is that which cannot be rightful private property (C).
- Therefore, ideas (A) are that which cannot be rightful private property (C).
- Impractical and vague ideas (X) are not scarce (B). True.
- That which is not scarce (B) is that which cannot be rightful private property (C).
- Therefore, specific-practicable-tested ideas, Y, a category we haven’t examined, are C, that which cannot be rightful private property.
Case Study: A Party’s Utility Patent on Its Version of the Paperclip Does Not Grant That Party a Government-Enforced Monopoly on the Paperclip Market
To understand the difference between a patent and a government-enforced monopoly, we can look over U.S. utility patents on an invention as simple as paperclips. Your gaining a utility patent on your specific paperclip design does not grant you a government-enforced monopoly on the production of paperclips. Between the years 1867 and 1957, the U.S. Patent-and-Trademark Office issued 17 U.S. utility patents relating to paperclips. Every new paperclip patent arrived within an interval shorter than seventeen years. That is, each of these patents was granted prior to the expiration of the previous paperclip patent. The reason is that a patent does not claim ownership over a general idea for a product category such as “paperclip.” Instead, enshrined in a patent is recognition of a party’s rightful ownership over the specifics of its design, presentation, and formulation.
A utility patent protects the design with respect to its main functionality and operation. By contrast, a
The essential phrase in the Copyright Clause is not exclusive right but respective writings and discoveries. Let us read the clause again, this time with William Middlebrook’s situation in mind: “...securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (emphasis added). Here, respective means that Middlebrook’s U.S. utility patent covers only the specifics on what he originated.
To understand the difference between a patent and a government-enforced monopoly, we can look over U.S. utility patents on an invention as simple as paperclips. Your gaining a utility patent on your specific paperclip design does not grant you a government-enforced monopoly on the production of paperclips. Between the years 1867 and 1957, the U.S. Patent-and-Trademark Office issued 17 U.S. utility patents relating to paperclips. Every new paperclip patent arrived within an interval shorter than seventeen years. That is, each of these patents was granted prior to the expiration of the previous paperclip patent. The reason is that a patent does not claim ownership over a general idea for a product category such as “paperclip.” Instead, enshrined in a patent is recognition of a party’s rightful ownership over the specifics of its design, presentation, and formulation.
design patent protects the design with respect to its aesthetic qualities and how every component of the device contributes to an integrated whole. For more information on the distinction between utility patents and design patents, and on how neither is a government-enforced monopoly on a general product category, go here. The reason that so many patents were granted on the same type of device is that a patent has to be more specific than “object that temporarily fastens papers together without making any punctures in the sheets.” The patents themselves were varied in the shape of the fastener, its exact size, and the material with which it was to be made.
Conclusion: Clearing Up What the U.S. Constitution’s Copyright Clause Means By Exclusive Right — Hint: Pay Attention to “Their Respective Writings and Discoveries”
With this understanding, we can observe the clause in the U.S. Constitution that enshrines copyrights and patents. Pertinent here, we can ascertain how the opponents of intellectual property rights mischaracterize the meaning of the clause. U.S. Congress, says the document, is tasked “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The enemies of intellectual property rights, such as those influenced by anarcho-“capitalists” Murray N. Rothbard, Wendy McElroy, and Samuel Konkin III, seize on that phrase exclusive right and misrepresent that as a State-enforced monopoly. But here we should see that a party has an exclusive right to what that particular party originated. Suppose you claim a plot of wilderness and improve upon it and then live on it, with the State recognizing that homestead as your private property. That would not confer upon you a State-enforced monopoly on the entire real estate market. Likewise, points out Revolutionary Era attorney Daniel Webster, a “man’s right to his own invention ...is no more a monopoly for him to possess ...than to possess his own homestead.”
We can see that with U.S. utility patents on paperclips. William Middlebrook’s 1899 U.S. utility patent on his machine for producing “gem” paperclips was an exclusive right on this particular machine. Note from the table above that in the seventeen years that followed, the patent did not confer upon Middlebrook some State-enforced monopoly on either paperclips or the machines that produced units of them.
With this understanding, we can observe the clause in the U.S. Constitution that enshrines copyrights and patents. Pertinent here, we can ascertain how the opponents of intellectual property rights mischaracterize the meaning of the clause. U.S. Congress, says the document, is tasked “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The enemies of intellectual property rights, such as those influenced by anarcho-“capitalists” Murray N. Rothbard, Wendy McElroy, and Samuel Konkin III, seize on that phrase exclusive right and misrepresent that as a State-enforced monopoly. But here we should see that a party has an exclusive right to what that particular party originated. Suppose you claim a plot of wilderness and improve upon it and then live on it, with the State recognizing that homestead as your private property. That would not confer upon you a State-enforced monopoly on the entire real estate market. Likewise, points out Revolutionary Era attorney Daniel Webster, a “man’s right to his own invention ...is no more a monopoly for him to possess ...than to possess his own homestead.”
We can see that with U.S. utility patents on paperclips. William Middlebrook’s 1899 U.S. utility patent on his machine for producing “gem” paperclips was an exclusive right on this particular machine. Note from the table above that in the seventeen years that followed, the patent did not confer upon Middlebrook some State-enforced monopoly on either paperclips or the machines that produced units of them.
Middlebrook did not originate paperclips in general, and the patent does not secure for him any exclusive right on the entire paperclip industry. He did originate, though, his own specific method of producing “gem” paperclips. Hence, the U.S. Constitution is securing for him the exclusive right over his respective “writings and discoveries,” meaning the specific aspects he devised himself. And, thankfully, throughout our history the U.S. courts have been remarkably consistent in respecting that distinction.
On Sunday, December 23, 2018, I added the infographic on the bottom was added on Sunday, December 23, 2018. On Thursday, January 30, 2025, I added the sections from the second essay about the U.S. utility patents on paperclips, and I added the parts about the U.S. Constitution copyright clause and the observation from Daniel Webster.
