2016 Articles

Regulatory Property: The New IP

Feldman, Robin

For almost thirty years, a new form of intellectual property has grown up quietly beneath the surface of societal observation. It is a set of government-granted rights that have the quintessential characteristic of intellectual property and other forms of property—that is, the right to exclude others from the territory.
If Regulatory Property should be understood as a unified system, one must have some theoretical grounding for its existence. Without a coherent construct, there is no way to intelligently shape its development and test its success. Thus, Section III of the paper sets out a general theoretical framework for the type of regulatory property that has emerged. This Section also explores a series of benchmarks to use in establishing Regulatory Property, describing the logic for these benchmarks, and tests the current forms of Regulatory Property against these measures. The benchmarks include: (1) minimizing overlap with other forms of intellectual property; (2) ensuring that the system is capable of stimulating results, and that those results are desirable; and (3) ensuring that there is a metric for measuring outcomes in relationship to goals. With these and other perspectives, society has an opportunity to think critically and cohesively about the new form of intellectual property that has developed incrementally over the last several decades.
The Regulatory Property that has emerged so far falls within the life science industry. That is understandable. The FDA’s all encompassing approval scheme and regulatory system has provided a perfect vehicle for the creation and dissemination of Regulatory Property. The lessons, however, are widely applicable to other innovative industries. As newcomers in industries such as transportation (think Uber and Lyft), hospitality (think Airbnb and Villas), 11 and domestic and construction services (think TaskRabbit) press the boundaries of creativity up against regulatory networks, government actors may be tempted to create forms of Regulatory Property related to these innovations, in the hopes of incentivizing innovative entrants as well as placating existing industry players. For example, local, state, or federal authorities might try to attract an industry, such as solar energy innovation, devising benefits for new entrants balanced against protections for existing energy industries. Such is the story of the creation of Regulatory Property for the life science industry, and it is one that easily could be replicated.
It is also a story with echoes in the international arena. Various aspects of these rights have tentacles that now reach into the European Union, the North American Free Trade Agreement, and most recently, the Trans-Pacific Partnership.12 Thus, after thirty years, it is more than time to think comprehensively about this new form of intellectual property rights, a regime that lies entwined throughout our system