What to do About Patent "Rights"

The United States Supreme Court yesterday heard arguments in a patent case. The case itself has little relevance to the current project, as it deals with detailed doctrines which, in a free world, would be abolished by repeal of patent law.

Other libertarians have persuasively argued that patent rights cannot justly be granted or recognized. The concept itself is difficult to defend from an anarcho-capitalist perspective.

Thus the question for lawmaking: on repeal of the patent laws, should existing patents be "grandfathered" for the remainder of their twenty year life, or should the rights die with repeal?

Immediate expiration of existing patent rights could well be an unconstitutional taking of property rights, meaning that taxpayers would pay for the premature expiration of existing patents or, at a minimum, pay for the litigation. A constitutional amendment could avoid this result, but would be much more difficult to achieve.

An anarcho-capitalist cannot justly "balance" the rights of one who wants to produce a patented product against the rights of taxpayers who do not want to finance another's right to produce the product. A prospective-only statutory abolition, however, does not prevent the proponent, or the producer, from seeking a constitutional amendment making the repeal retroactive. It does not increase government interference with property rights, but only recognizes that the cost of retroactive legislation should not be borne by innocent taxpayers.

Articles of Dissolution

Lew Rockwell has published an article by Michael Rozeff entitled "On Dissolving the United States of America."

Rozeff's proposal relates to what I see as the second (or possibly third) analytical step which an anarcho-capitalist would properly take in developing model laws of freedom.

The first is to draft the detailed substantive and procedural laws which would justly apply in the absence of government -- what Rothbard referred to as a Libertarian Law Code.

The second step would be to draft Articles of Dissolution for adoption by the United States, addressing what becomes of the property of the United States, how rights created by its authority are recognized after dissolution, and other transitional steps.

It is admittedly not likely that there will be an immediate demand for either a Libertarian Law Code or Articles of Dissolution. However, Rothbard's strategy for liberty requires that the ideal be at all times held up, even if the immediately available increases in freedom are significantly more modest.