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Are Ideas within the Traditional Definition of Property?: A Jurisprudential Analysis

Ideas in the form of technical know-how, information, inventions, and unique product designs are products of mental activity that often have substantial value. Such products of the mind, generally called intellectual property, are significantly different from realty or tangible objects. Products of the mind can be simultaneously possessed and used by multiple parties, and different parties may even use the same product of the mind differently. In contrast, the mythical Blackacre cannot be simultaneously used as an airport and as a cornfield. Furthermore, a tangible object such as a wooden chair is not capable of being used both as a seat and as fuel for a fireplace. These differences between ideas and realty or tangible objects raise the question of whether ideas fit within the traditional concepts that comprise property law. To answer this question, this article will first attempt to provide a generic definition of property. The underlying policy reasons for the protection of intellectual property, including ideas, will be identified. In light of this definition and the underlying policies, the protection of ideas under state common law, trade secret law, and patent law will be examined. The article will conclude that common law idea protection, trade secret law, and patent law are all property based regimes predicated on the recognition of property rights in ideas.