To celebrate World IP Day, here is a nerdy thread about the theories behind IP that I think explain most (if not all) of the fights over IP we see today. This is about social contract v. natural rights theories.

Foundational theories are important. Think about why we imprison people. Is it retribution, rehabilitation, isolating dangerous people, some mix of all three? How we answer changes how we create policies and how we test those policies. Having no answer leads to bad policy.

The same is true for IP policy. Historically, the U.S. has developed under a social contract based IP system. Creators and innovators are rewarded with a limited right to exclude in exchange for their creations becoming a part of the public domain in the future.

It's in the constitution: "To promote the progress of science and useful arts." The power given to Congress to create IP policy is qualified in two ways - it has to be limited in duration and for the purpose of promoting progress.

This interpretation of the clause is widely understood and most recently confirmed by the Supreme Court in Google v Oracle. It's not a "special reward" and IP can have "negative features" including higher prices, special costs, and preventing creativity.

https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf

However, there is an alternative theory called natural rights. This theory states that people have a natural right to the intellectual property they conceive just as they would any physical property they create. I.e., you make a chair you own it, you invent something you own it.

I think natural rights theory is nonsensical, but that's not the point of this thread. The point is to argue that natural rights based reasoning has been creeping into our social contract system to the point where it is now difficult to set social contract policies.

There are many labels given to the view that more patents always equals more innovation. One label is faith-based IP, because the adherents are quick to criticize any who empirically test whether strong IP is delivering the intended benefits (and measuring the costs).

We tend to call them maximalists, because they always seem to advocate for more IP. I think their advocacy makes more sense when viewed through the lens of natural rights theory and their efforts seem to be to inject natural rights theory into our IP system.

We don't force people to give their house or their possessions to the public after a certain number of years. So adherents to natural rights would logically always want IP owners to have more rights until they align with (or even exceed) property rights.

The problem is that the natural rights folks have largely succeeded in pushing these views into our IP system. Anything that is not based on the premise that IP is an important property right is cast as an over-reach and controversial.

And that's a problem because more patents does not always lead to more innovation. And there are public interest factors that must be weighed when setting optimal IP policy. Like the ones Breyer mentioned - prices, social costs, and creating a drag on creativity.

There are lots of problems today that have highlighted the need to return to our social contract based IP-system, like high drug prices. Even IP intensive industries are now sometimes adopting "balanced IP" language used by those of us who are social contract adherents.

Hopefully, the result is a rebalancing and a return to the social contract foundation. We should be able to test theories, like whether current patentable subject matter rules hurts the diagnostics industry, and make policy decisions based on those findings and other interests.