Skip to main content


Showing posts from July, 2011

Patent Part 1: The Basics

To wrap up this tutorial series on intellectual property, I will need to spend a few installments talking about patents. In short, patents are to inventions what copyright is to creative media. Nevertheless, patent has its own hornet's nest of issues, and ethical concerns, to discuss. This installment will cover the basics, providing a general look at patent law. The following installments will detail some of the thornier problems with biological patents, pharmaceutical patents, software patents, design patents, and business method patents.
Like copyright, a patent is a limited monopoly granted to an inventor for the purposes of controlling and securing a living from her intellectual labor. The invention must be something new, non-obvious, and useful, and the monopoly lasts twenty years. The holder of the patent can control the duplication, distribution, or implementation of the invention, so she can sell licenses to firms, granting access to the invention in exchange for some mo…

Trade Secrets

Now, we come to an even more obscure for of intellectual property: trade secrets. Trade secrets can be any innovation, a process or technique of manufacture, that a firm uses in its business. The most famous example is likely the formula for Coca-Cola. To be a trade secret, a firm must simply treat it as secret, limiting the number of people who know, requiring those who must be privy to the secret to sign non-disclosure or non-compete agreements. Trade secrets require no registration, and trade secret protection never expires. On the other hand, trade secrets also receive no substantial protection from the government, except in cases of corporate espionage. If a trade secret is obtained through illegal means, the victim firm can seek compensation and can get injunctions against the offender using the stolen information. Nevertheless, a firm has no such recourse in cases of reverse engineering.
Some scholars have claimed that trade secrets serve as a counterexample to Utilitarian or in…

The Paradox of Trademark

Much of this tutorial has concerned intellectual property issues as they relate to copyright. Copyright is, in many ways, the form of intellectual property that we discuss the most. After all, we live in a very connected media culture, so creative media is really part of our environment. Nevertheless, no discussion of intellectual property, and certainly no tutorial series on intellectual property, would be complete without at least some detailed discussion of the other major forms, namely patent, trademark, and trade secret. As such, I'll finish this series with at least one installment on each of these, beginning with trademark.
Again, we discuss copyright perhaps more often than any other form of intellectual property, but trademark may well saturate our environment even more thoroughly than copyright. We just don't seem to discuss it quite as often, and in some ways trademark isn't as fascinating as debates about file-sharing, fair use, or derivative works. Nevertheless…

Justifications for Intellectual Property Part 3: Self-Expression Justifications

The third dominant justifying theory for intellectual property rights is often called the Self-Expression justification. Most scholars attribute it to Hegel, but it ultimately has roots in Kant. While few philosophers even addressed intellectual property, Immanuel Kant discusses the sale of pirated books in Metaphysics of Morals. Kant argues that reprinting a book after first publication is a violation of the author's right to entrust his communication to a particular publisher. Viewing books as importantly communicative, not material, in nature, Kant claims that a publisher is essentially a spokesperson, someone designated by an author to communicate his ideas to others. Reprinters interrupt this process by taking it on themselves to communicate the author's idea, without his consent. Reprinting is then akin to removing the author's control over the communication of his ideas. While Kant's argument does not get you an entire system of intellectual property, he does dr…

Justifications for Intellectual Property Part 2: Labor-Desert Theories

I know it's been a little while, but I want to finish this tutorial series rather than abandoning it and moving on to other topics. Of course, I would have liked to have finished it by now, but various research and teaching-related obstacles have kept me nose down in the Real rather than preparing content to be released into the internet. Nevertheless, I'm returning to routine, so I'm going to release this installment today, rather than wait for my usual MWF release schedule.
At any rate, let's pick up where we left off and talk about justifications for intellectual property rights. While the utilitarian justification discussed in the last post enjoys the status of having been enshrined in law, scholars and jurists have often brought in other property-justifying theories. Perhaps the most popular of these are Labor-Desert justifications, best exemplified by John Locke (the philosopher, not the character on Lost).
In his Second Treatise on Civil Government, Locke const…


I have to extend apologies for my absence. I've returned to teaching, so I have been inundated with work. Rest assured that i will complete the tutorial series soon, and then move on to other topics. Hang in there for new content in just another day or so.