The Right Not to Use in Property and Patent Law

Abstract

In Continental Paper Bag Co. v. Eastern Paper Bag Co., Supreme Court, held (among other things) (1) that owners have an absolute right not to practice their and (2) that even these non practicing owners are entitled to liberal use of injunctive relief against infringers. Both of these holdings have been very important to viability of assertion entities, or so-called patent trolls. In eBay Inc. v. MercExchange, LLC, Supreme Court softened injunction rule. In this essay, we argue that Congress or Court should also reconsider Continental Paper Bag’s endorsement of a robust right not to use, not because patents are not property but because considerations at work within both property and law do not support recognizing such an absolute right not to use patents. The Court's endorsement in Continental Paper Bag of a robust right not to use patents was based on an overly simplistic analogy to tangible property, which Court characterized as recognizing the privilege of any owner of property to use or not use it, without question of motive. The Court's reasoning was flawed in two respects. First, law of tangible property distinguishes among nonusers, penalizing owners whose derelict nonuse interferes with other owners’ use of their own property or induces others to waste time or effort appropriating unused property. With respect to these derelict nonusers, law employs numerous doctrines, such as nuisance, abandonment, adverse possession, and permissive waste, to ensure that owners' decision not to use their property does not inflict harm on others. Second, beyond its poor understanding of law of nonuse as it relates to tangible property, Court in Continental Paper Bag failed to consider ways in which reasons for recognizing a right not to use might differ in contexts of and tangible property. Although same basic considerations are at play in both contexts -- efficiency, autonomy, and personhood -- implications of nonuse differ in context because of information's nonrivalrous nature and because of particularly powerful way that law constrains freedom of nonowners. Taking these factors into account suggests that normative case for recognizing a robust right not to use a is weaker than in domain of tangible property. This is especially true when nonusing owners attempt to enforce their patents against independent inventors. As a consequence, in cases brought against independent inventors, we suggest making remedies contingent on a owner’s efforts to disseminate their inventions. Recognition of such an obligation to use in patents would significantly reduce threats posed by so-called trolls and high tech wars.