Costly Intellectual Property

58 Pages Posted: 2 Aug 2009 Last revised: 21 Jul 2018

See all articles by Dave Fagundes

Dave Fagundes

University of Houston Law Center

Jonathan S. Masur

University of Chicago - Law School

Date Written: April 1, 2012


Though they derive from the same constitutional source of law, patents and copyrights vest very differently. Patents arise only after an applicant successfully navigates a cumbersome and expensive examination, while copyrights arise costlessly upon mere fixation of a work in a tangible medium of expression. Each of these vesting systems has drawn much criticism. Some scholars argue that the patent examination system imposes heavy costs while failing to eliminate invalid patents. Each of these claims, though, fails to take into account the social benefits (or costs) associated with the screening mechanism (or lack thereof) required for owners to perfect their rights. The social-welfare implications of process costs have been studied in other settings, but largely ignored in the intellectual property (IP) literature. In this Article, we leverage the insights of this literature to craft a novel theory showing why the much-maligned patent and copyright vesting systems are actually socially beneficial. Our analysis rests on a descriptive account of how patents and copyrights create differential social and private values, and shows that costly screens select differently across the classes of value in each of these cases, so that process costs are warranted in the patent setting but undesirable for copyright. Finally, we abstract the insights of this paper to generate two more general insights about law. First, we illustrate how this analysis of costly screens generates a broader account of how law does and should govern processes for vesting IP rights. In so doing, we offer a novel and unified theory of IP process. Second, we explore how our discussion of process costs in the IP setting illuminates the underappreciated benefits and costs of screens in other areas of law.

Keywords: intellectual property, patent, copyright

Suggested Citation

Fagundes, Dave and Masur, Jonathan S., Costly Intellectual Property (April 1, 2012). Vanderbilt Law Review, Vol. 64, p. 677 (2012), University of Chicago Institute for Law & Economics Olin Research Paper No. 596, U of Chicago, Public Law Working Paper No. 383, Available at SSRN: or

Dave Fagundes (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Rd.
Houston, TX 77204
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713.743.1431 (Phone)
713.743.2238 (Fax)


Jonathan S. Masur

University of Chicago - Law School ( email )

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Chicago, IL 60637
United States
773.702.5188 (Phone)


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