Intellectual Property Law as an Internal Limit on Intellectual Property Rights and Autonomous Source of Liability for Intellectual Property Owners

Bulletin of Science, Technology & Society, Forthcoming

33 Pages Posted: 8 Jul 2007

See all articles by Elizabeth F. Judge

Elizabeth F. Judge

University of Ottawa - Common Law Section

Abstract

This article considers the interplay between intellectual property rights and classic property rights raised by Hoffman v. Monsanto Canada and advances the idea that intellectual property law can serve as its own source of liability for intellectual property owners. This article suggests a theoretical framework to support the idea that intellectual property law, and patent law, in particular, are an autonomous source of liability for intellectual property owners and intellectual property law itself is a source of internal limits on intellectual property rights. It develops the conceptual advantages of demarcating physical and intellectual properties and allocating rights and responsibilities based on the respective property sphere, using the exhaustion doctrine under intellectual property law as illustration. It then turns to develop a theoretical basis to derive continuing duties on the patentee based on patent law through a Hohfeldian framework, in which the grant of a positive limited term monopoly right entails a corresponding duty on the patentee. While the orthodox version of patent law constructs it as a bargain between the patentee and the public, in which the quid pro quo (or Hohfeldian duty) for the patentee is public disclosure, under the theory introduced here of intellectual property as an autonomous source of rights and duties, the reciprocal duties corresponding to the patent rights could be more far reaching than public disclosure. The paper serves as a prolegomena to a detailed matrix of those rights and duties within intellectual property law and introduces the theoretical basis for establishing such internal limits within intellectual property. This matrix of rights and duties under intellectual property law could set up patent law as an alternative legal framework to tort law to address harms caused by inventions.

Keywords: Exhaustion, First Sale, Hoffman, Schmeiser, GMO (genetically modified organism), Hohfeld, Intellectual Property Law, Patent

JEL Classification: O34, K40, K41

Suggested Citation

Judge, Elizabeth F., Intellectual Property Law as an Internal Limit on Intellectual Property Rights and Autonomous Source of Liability for Intellectual Property Owners. Bulletin of Science, Technology & Society, Forthcoming, Available at SSRN: https://ssrn.com/abstract=998922

Elizabeth F. Judge (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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