Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Is a Patent a Monopoly?

Rereading N. Stephan Kinsella's paper "Against Intellectual Property", it occurs to me that strictly speaking a patent is not a monopoly, but instead is an exclusionary device that legally prohibits anyone, even an independent inventor, from copying a patented invention, method, or process. It gives the inventor, in cahoots with the State of course, the right to exclude others from inventing the patented object. A patent does not give an inventor the right to produce his own invention, although he can do so as a consequence of the natural right he has in his property, which includes his body (self-ownership) and his legally owned materials he would use to produce it. Of course, the effect is the same as a monopoly, because he is the only person who can legally produce the ideal object that is the subject of the patent.


For an example of the contradiction of this law, see Kinsella, pp. 4-5, n. 12. Then call your Congressman/MP, etc. and tell him/her that "I'm mad as hell and I'm not going to take it anymore."

Peter Finch, the only actor ever to win a posthumous Oscar award for Best Actor, would be proud.


Patents aren't monopolies, in the economic sense anyway. My argument is that a monopoly can't exist if there is no market. The patent does not guarantee anything about the size or even the existence of the market.

The patent is a very specific right. It is the right to exclude:

1. a party - it's not "everyone" that might infringe 2. from infringing an identified product - it's only the identified products, not other ones that also might infringe 3. at a particular point in time - as the patent owner, I can't exclude you until I have a decision from a competent court

None of these rights guarantee a monopoly.

A Patent is generally thought of as a monopoly, because it excludes competitors who would use the patented invention, etc. without paying a licensing fee. Although a patent doesn't guarantee the existence of a market or even a product to bring to market, it does enable a patentee to attempt to do so without direct competitors in the market for the patented thing, who might exist in a free market.

A patent is also considered to confer the right to specific "intellectual property," which is protected by the patent against direct competition. As a natural rights libertarian, I deny that a patent confers any sort of right, and I maintain that for all practical purposes it is a grant of monopoly privilege. Of course, as Kinsella points out, it doesn't give anyone the right to produce the patented object, which instead already exists as a natural right.

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