By Dennis Crouch
Excellent practitioner guides are often described as the “Bible for ___.” Peter Menell’s “Patent Case Management Judicial Guide” might fit into this category as the patent litigator’s Bible. However, I see some disconnect in the bible naming process. Although the Christian Bible does include rules of practice, it turns out that those rules are regularly ignored. Many practicing Christians instead see the Bible as more simply providing a source of faith as well as some general guidance.
It is in this broader context that that I see Professor Rob Merges’ new book Justifying Intellectual Property as a new Bible for Intellectual Property. In his 2011 Harvard University Press book, Merges explains his faith in intellectual property and how the basis for his faith provides general guidance for the structure of a well designed intellectual property system.
Merges is an excellent writer, but the reading is still dense – largely because Merges bases his arguments on the philosophic writings of John Locke, Immanuel Kant, and John Rawls. In reading the book, I am continually referring to the original sources (via the public domain and an internet search). This takes time, energy, and active reading, but will be rewarding for any patent attorney looking to live a purpose filled life.
Merges also believes that utilitarianism is important to intellectual property. However, that justification has always lacked power because proof that the IP system really works has turned out to be “impossibly complex.” In the end, utilitarianism or consequentialism offer only a hollow purpose. As Merges writes in his introduction “[m]aximizing utility, I have come to see, is not a serviceable first-order principle of the IP system. It is just not what IP is really all about at the deepest level.” It makes sense to me that any true right needs more justification than can be provided by an econometrician. (My conclusion may well be based on the large number of economists that I know with failed moral compasses.) To be clear, Merges argues that the IP system should be designed efficiently and in a way that generally benefits society. His point, however, is that utilitarianism does not fully justify the property rights. Rather, for Merges, concerns of efficiency, along with proportionality, dignity, and non-removal are all “midlevel” principles that, though important, are not fundamental justifications. At the fundamental level, Merges relies upon deontological ethics derived from Locke (justification for appropriation), Kant (individual freedoms), and Rawls (distributive justice). By threading together these historic lines of thought, Merges provides an ethical foundation both for the establishment of property rights for creative contributions to society as well as for substantive limits to those rights.
Justifying Intellectual Property is a fascinating book and I will likely post a second discussion of the book after I finish reading the second half. The book does not have all the answers and, in my view, is not always correct. It does, however offer a new framework for understanding intellectual property with a particular focus on why it makes sense to offer property rights for creative enterprises.