IP Watchdog Opinion: Ruminations on Licensing – IP as a Private Property Right, by Brian O’Shaughnessy
This post originally appeared in IP Watchdog on September 26, 2017.
If we are to encourage invention and promote investment in innovation and the formation of new enterprises, we must provide a system of laws that recognize intellectual property as having all the attributes of other forms of personal private property.
In his seminal work “On War”, Karl Von Clausewitz described war as merely the continuation of politics by other means. In the same spirit, we might think of litigation as a continuation of licensing by other means. Ultimately, the same result is achieved. There is a dispute over certain rights, a contest of ideas and/or arms in resolution of the dispute, and, ultimately, resolution in the form of an agreement. Now, it might be that the agreement reached is in the form of an implied license and peaceful co-existence; or it might be a more formal “treaty” whereby the contestants specify anew their respective rights and responsibilities; or it might be a complete vanquishing whereby one side declares total victory. Rarely, however, and especially in today’s highly complex and interdependent markets, is this latter scenario observed. Nonetheless, in each case, there is a settlement of sorts, and usually in the form of a license agreement.