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.