As Congress contemplates patent reform, there has been much talk about what the conservative position should be. Unlike right-to-life or tort reform, patent law is not usually a headline topic for conservatives. Nevertheless, I do believe there are issues worth thinking about from a conservative perspective.

Republican leadership in both the House and the Senate are working on major patent reform legislation, which passed the Republican controlled House overwhelmingly last term but stalled in the Democratic controlled Senate. In an effort to demonstrate that they, too, care about patent reform, 3 Democratic members of the Senate introduced their own bill recently, which is largely a garden of delights for trial lawyers and patent trolls.


As the debate has heated up in Congress, so has the rhetoric. In particular, in the hopes of plucking the heart strings of conservatives, a number of commentators have begun calling patents “property rights.”

Having taught property law for a decade, I take the sanctity of property rights quite seriously. I also believe that a robust patent system is essential for innovation. Patent rights, however, are quite different from real property rights, and I worry deeply that if we try to analogize patents and property rights too closely, we risk damaging the respect that should be accorded to real property.

From a Constitutional perspective, the respect for real property evidenced in Constitutional language and history is worlds apart from what is reflected in the Constitution’s intellectual property clause. The intellectual property clause gives Congress the power to grant rights for limited times in pursuit of a specific goal. This creation of a narrow public franchise for limited policy reasons stands in sharp contrast to the Framers’ conception of core private property rights, and the way in which those rights are treated in the Constitution.

In fact, in January there was an important dissent from Justices Thomas and Alito in the Teva case. The case concerned an esoteric area of patent law, but their opinion included historic perspectives that highlight the contrast between patents and property.

The Anglo-American legal tradition has long distinguished between “core” private rights—including the traditional property rights represented by deeds—and other types of rights. These other rights [include] “privileges” or “franchises” which public authorities have created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature. Notwithstanding a movement to recognize a core property right in inventions, the English common law placed patents squarely in the final category as franchises. . . (citations omitted).

As the text of the dissent explained further, our own Framers adopted a similar scheme. In other words, from a constitutional perspective, patent rights simply are not analogous to property rights.

From an economic and pragmatic perspective, patents also are quite different from property. Patents are more like time-limited options or opportunities to bargain than they are like land. And although most people think of patents as powerful rights that block out everyone from the sphere covered by the patent, that is not a complete picture.

Imagine a candy maker who invents a new dye for candy and a doctor who later discovers that the formula is useful for treating injuries. With proper patent drafting, the candy maker will have the right to exclude everyone from using the dye in any way, and the doctor will have the right to exclude everyone from using the dye to treat injuries. These are classic overlapping patents, and neither the candy maker nor the doctor can use the dye to treat injuries without the permission of the other. The point is simply that for many reasons, patents are quite different from what one might assume, and they are a long way from real property.

Patent reform is a complex issue. Given endemic problems with patent quality and the costs and risks of lawsuits, players in the patent system have learned how to extract nuisance settlements from companies, regardless of whether the patents are valid or whether the company is actually infringing those patents. The number of patent lawsuits and the number of defendants sued has more than doubled since 2007, with most of the increase coming from entities whose raison d’etre is extracting payments from companies that make products. There is no silver bullet, and efforts to curb abuses in the system must be carefully calibrated to maintain incentives to innovate—the reason we have a patent system in the first place. Overblown rhetoric, however, is unlikely to lead to rational solutions.

Most important, in the discussions that have begun to crop up equating patents with property rights, there is much loose language and sliding across constitutional concepts and statutes. This type of analysis is diametrically opposed to the discipline that many members of the judiciary across the spectrum have strived so hard to enmesh in modern jurisprudence. For the sake of the patent system, as well as constitutional analysis, I hope that as the public conversations progress, we will require of ourselves an appropriately high level of logical precision and discipline.

Feldman is the Harry & Lillian Hastings Professor of Law, director of the Institute for Innovation Law at the University of California Hastings College of the Law and author of the book, Rethinking Patent Law (Harvard).