Here, it is sufficient to explain that Lockean theory was determinative in designing IP law, and in fact it drove the creation and application of many doctrines that have come to be settled IP law in the United States, at least with respect to legally securing patented innovation.
To understand this point, though, one must first understand how legal doctrines are generally construed and applied by courts and other legal actors.
For the sake of brevity, a few illustrative quotes must suffice.
In a patent lawsuit in 1845, an American judge wrote that “we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” This 1845 judicial opinion appears to be the first use of the phrase “intellectual property” in the official American legal records.
Such inventions represent the rationally-guided, value-creating, productive labor that serves a flourishing human life in civil society, and this is why Locke highlights them as exemplars of his property theory.
Lockean Theory in Modern American IP Law The genius and success of Anglo-American property law is that it has recognized and applied the central idea from Lockean property theory that property rights secure , not just physical objects.The key moral insight in Locke’s is that all property arises from the fact that individuals must produce the values required for a flourishing human life.Accordingly, property rights define the sphere of liberty required for an individual to create, use, and dispose of these values.As I have explained, this is the essence of Locke’s “mixing labor” argument for property in the that creates the physical goods required for a flourishing human life. depends only on their usefulness to the Life of Man.” (II.26, II.34, II.37, II.36, II.48).Philosopher Stephen Buckle, for instance, writes that, for Locke, “labour is the improving, value-adding activity required by the duty to preserve oneself and others.” Locke is absolutely clear about the meaning of value: “the intrinsick value of things . This is unsurprising given Locke’s commitment to classical natural law ethical theory and its moral ideal of a flourishing life, consisting of both mental and physical values. This important point is often missed by legal scholars and philosophers who read only the I.30) A flourishing human life requires both intellectual and physical labor—the production of the intellectual and physical values that serve the “conveniences of life” through the uniquely human capacity for rationally guided action.This essay thus details how a moral theory that justifies the right to property according to productive, value-creating labor equally justifies IP rights as property rights.This is John Locke’s property theory, and while his property theory is not the only labor-desert theory, for ease of reference, I shall refer to it as the “Lockean theory.” Of course, in a short essay, one cannot explicate every premise or respond to every reasonable counterpoint deserving of a response, and thus what follows is only an outline of the Lockean justification for IP rights.It will also detail how this theory guides the design and application of the legal rules and institutions charged with the protection of IP rights in civil society, just as it did historically (see, for example, here, here, and here), despite incorrect claims to the contrary. A Brief Sketch of a Lockean Theory of IP One of the strengths of the Lockean property theory is that it recognizes that IP rights are fundamentally the same as all property rights in all types of assets—from personal goods to water to land to air to inventions to books.These and many other type of goods are the byproduct of an individual’s value-creating, productive labor that creates them, acquires them, transforms and uses them, and ultimately disposes of them in voluntary transactions with other people in civil society.Today, the dominant justification for intellectual property (IP) rights is a broadly framed utilitarian theory. But this was not always the case, and nor should it be.Both utilitarian and labor-desert theories offer robust normative justifications for IP rights, and historically they were both called upon by courts and commentators. Unfortunately, widespread misunderstanding about labor-desert theories abounds today, especially in IP scholarship (see here and here).