I have never liked the term “intellectual property”. It feels more PR-inspired than enlightening and, unfortunately, often masks some important distinctions between a historically-complicated set of ideas. My general inclination, when I used to teach an IP seminar, was to use the term “exclusivity grants”: the notion being to emphasize the governmental role (IP being a “grant” from the government) and to emphasize “exclusivity” as being the touchstone of all IP.
Even the conventional notion of “exclusivity” breaks down a little bit when you dig deeper into the details. Most people, I think, have a good grasp of the concept of exclusive use of a trademark or a copyrighted work. Many, however, do not understand that one does not get exclusive use of a patented invention. Unlike trademarks (where use of the mark is a regulated requirement) and copyrights (where control of copying is used to control other aspects of the work), patents are an odd beast. Under Section 271, you get the right to exclude others from using your invention. You get no right to use your own invention. It is ironic, but, in a sense, “use” of your own invention is exactly what you have given up when the government decides to move its regulation of technology to a patent system regime.
Even the conventional notion of “exclusivity” breaks down a little bit when you dig deeper into the details. Most people, I think, have a good grasp of the concept of exclusive use of a trademark or a copyrighted work. Many, however, do not understand that one does not get exclusive use of a patented invention. Unlike trademarks (where use of the mark is a regulated requirement) and copyrights (where control of copying is used to control other aspects of the work), patents are an odd beast. Under Section 271, you get the right to exclude others from using your invention. You get no right to use your own invention. It is ironic, but, in a sense, “use” of your own invention is exactly what you have given up when the government decides to move its regulation of technology to a patent system regime.
