The Patent Lawyer’s Guide to Fascism

This essay presents an unusual and potentially valuable way of thinking about the patent system. It is worth considering the ways in which the structure of private law may affect our susceptibility to undesirable forms of societal organization. This essay considers how a well-structured patent system could potentially reduce our susceptibility to fascism by: (1) promoting an ethos of independent creative thought, and (2) facilitating market entry by startups, thereby reducing market concentration and possibly reducing authoritarian hierarchy. One legitimate utilitarian aim of the patent system might be to thus promote horizontal individualism, which could tend to work against fascism’s extremely nationalistic vertical collectivism.

Promotion of individual autonomy might be an under-recognized benefit of the patent system, suggesting a valuable lens through which to view not only patent law, but also other areas of private law.