Kritika: Essays on Intellectual Property

Kritika: Essays on Intellectual Property

Volume 1

Kritika: Essays on Intellectual Property

Edited by Peter Drahos, Gustavo Ghidini and Hanns Ullrich

The field of intellectual property has broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. The Kritika: Essays on Intellectual Property series is a series of books that are designed to fulfill this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Breaking down the barriers of specialization, and laying the foundation for an emergent critical scholarship, this first book in the series brings together the leading scholars in the field to reflect deeply on the current state and future of their discipline.

Chapter 1: Rethinking patents: From ‘intellectual property’ to ‘private taxation scheme’

Frederick M. Abbott

Subjects: law - academic, intellectual property law


Patents are, in essence, a private right to tax. There is a fundamental question regarding the allocation of a monopolistic private tax to large industrial and post-industrial organizations: that is, does the power to collect a monopoly tax entail public responsibilities? The ‘genius’ of the industrialists that promoted the Paris Convention in the late 1800s was to bring the terminology of industrial ‘property’ into wide usage. The transition from ‘industrial property’ to ‘intellectual property’ is also significant from a linguistic standpoint. ‘Industrial’ conveys the sense of business orientation or commercial activity. ‘Intellectual’ conveys the sense of ideation or creativity. Consider the difference in public discourse if patents were referred to as ‘private monopolies’ or ‘private taxes’ instead of ‘intellectual property’. The Chairman of PharmaCo would seem a much less sympathetic figure when stating ‘the government has no right to interfere with my “private monopoly” or “private taxation scheme”’ than when stating ‘the government has no right to interfere with my “intellectual property”’. Terminology does matter. Scientists are feeding into a vast corporate and financial apparatus dedicated to maximizing financial returns, accompanied by gigantic payouts to corporate executives, and engaged in aggressive marketing campaigns. No level of patent-based rent extraction or private taxation is too high. There is no public or social responsibility other than that which may be imposed by class-action tort lawyers. We have watched the industry long enough to know that social responsibility must be legislated and enforced. Patents are not ‘intellectual property’. They are ‘private monopolies’ established by legislatures. As such, they should be subject to regulation in the nature of public utilities.