Indeterminism and the Property-Patent Equation

How should one construct optimal property rules in high-technology markets? The task is far from straightforward, given the prodigious rates of innovation in the field. In such a rapidly evolving environment, policymakers must approach many issues de novo. From an Internet service provider's desire to control activity on its servers to a pharmaceutical company's efforts to frustrate the emergence of generic drugs, lawmakers face an eclectic and ever-evolving array of scenarios.

In the new economy, such fundamental concepts as ownership, exclusivity, and alienability prove controversial and unsettled. Ideally, policymakers could look to related areas of law for guidance. The most obvious candidate would be the law governing real property, but, at first blush, these traditional principles seem far removed from the reality of high-tech markets.