How do theories of real property interact with the study of intellectual property? There are two kinds of property in Professor Michael Heller’s academic portfolio: real property—the stuff of dirt, bricks, and mortar—and intellectual property. Just as a single landholder can stand in the way of a city looking to revitalize its downtown, so can the holder of a molecular patent stall future discoveries in medicine.
In his earlier research, Professor Heller explored the negative effects of privatization of actual property in post-socialist Russia. With a glut of partial claims on the same commercial property, businesses could not function, and storefronts remained empty in this classic “anticommons” tragedy. An IP parallel is when too many “upstream” (early) patent holders serve as obstacles to “downstream” researchers who want to build on the earlier work. As a result, pharmacy shelves lack products that could have been invented but never came to fruition, he says.
Professor Heller explains the idea of the anticommons through real-world examples, for the tragedy extends well beyond the biomedical community. He points to the telecommunications industry as an example. “Wireless broadband exists in an IP environment rich with thousands of cross-cutting patents,” he says. “Owners of any one of those patents, including the most trivial or obscure, can potentially wreck the downstream investment that actually fuels economic activity in the U.S.,” he says.
Professor Tom Merrill is also interested in the intersection of property theory and intellectual property. Together with Professor Henry Smith of Yale Law School, he has written a series of articles about optimal standardization in property law, which has a number of applications to intellectual property rights. One article on the topic, “Optimal Standardization in the Law of Property: the Numerus Clausus Principle,” appeared in the Yale Law Journal.
Professor Merrill’s other projects include a study that compares first possession and accession as principles of original acquisition of property, which has significant relevance to intellectual property, for example in determining rights to derivative works.