Are Patents and Copyrights Morally Justified? - Tom G. Palmer

830 Harvard Journal of Law & Public Policy [Vol. 13
same invention, but one will beat the other to the patent office
by an hour or a day and will acquire an exclusivemonopoiy,
while the loser’s work will be totally wasted. . . . Since
the issue is one of commercial rights, the loser in a case of
that kind has to accept the fact that in seeking to trade with
others he must face the possibility of a competitor winning
the race, which is true of all types of competition. 49
This idea does not comport well with her earlier claim that intellectual
property rights are natural rights that are merely recognized—not
granted—by government; in this case a full
monopoly is awarded by government to one inventor, while another
with a claim equally valid in every respect exceptfor a ten
minute lead time at the patent office is denied any right to exploit
the invention.
Spooner offers a very different response to the problem:
[T]he fact that two men produce the same invention, is a
very good reason why the invention should belong to both;
but it is no reason at all why both should be deprived of it.
If two men produce the same invention, each has an equal
right to it; because each has an equalright to the fruits of his
labor. Neithercan deny the right ofthe other, without denying
his own. 50
What if, however, one of the inventors gives this right to the
rest of mankind? As Leggett argued, in the case of authorship,
Two authors, without concert or intercommunion, may describe
the same incidents, in language so nearly identical
that the two books, for all purposes of sale, shall be the
same. Yet one writer may make a free gift of his production
to the public, may throw it open in common; and then what
becomes of the other’s right of property? 5 ’
The same argument can be extended, of course, to inventions.
Liberty and intellectual property seem to be at odds, for
while property in tangible objects limits actions only with respect
to particular goods, property in ideal objects restricts an
entire range of actions unlimited by place or time, involving
legitimately owned property (VCRs, tape recorders, typewriters,
the human voice, and more) by all but those privileged to
receive monopoly grants from the state. To those who might
49. Rand, .supra note 29, at 133.
50. Spooner, supra note 2, at 68; see also R. Nozicx. supra note 37, at 182.
51. W. LEOGETF, supra note 43, at 402.