Abstract

Three attempts are usually made to justify patents: natural rights, distributive justice, and consequentialist arguments, all of which I contest.The natural rights argument is traced back to John Locke, defender of the ‘labour theory of property,’ who essentially holds that persons have a right to property insofar as they have mixed their labour with it, and insofar as they have appropriated natural things without exhausting them or taking more than their share. Yet, the inventor’s mixing of labour is often the last step of a longer historical process, and patents seem to encourage waste, since they restrict the use of an idea.The distributive justice argument holds that patents reward the initiative of inventors – with out this reward, ‘free riders’ would be able to compete unfairly; the exclusivity granted by patents corrects this hole in the free market. However, our current system does not necessarily reflect this principle; it is difficult to clarify the criteria on which an inventor deserves a reward; unsuccessful inventors and basic researchers also invest much initiative, and yet are not rewarded; it is unclear that justice should reward someone by granting them the exclusive right to determine what is done with knowledge; and no link exists between the social usefulness of an invention and the scope of protection granted by a patent.The consequentialist justification holds that patents encourage innovation, and the disclosure of knowledge. Although it is clear that patents encourage inventions, it is not clear that they encourage progress – they may even limit progress by restricting use of previous knowledge. As for the disclosure of knowledge: such knowledge is hard to keep secret in the first place, and patent offices grant overly broad patents.In conclusion, this paper offers some suggestions concerning the true costs of the patent system