Intellectual Contract and Intellectual Law, Journal of Technology Law & Policy
Technological change is altering the nature of contract toward a greater focus on intangible assets. The direction of technological change toward greater connectivity, interoperability, mobile communications, the Internet of Things (IoT), artificial intelligence (AI), virtual inventions, and cooperative research and development (R&D) has profound implications. This article develops a new framework that I refer to as “Intellectual Law” to address this shift. The article introduces the new concept of “Intellectual Contract” (IC) to characterize agreements for invention, innovation, and technology adoption. The article also introduces the concept of “Intellectual Tort” (IT) to describe liability including but not limited to misappropriation of trade secrets and infringement of patents, trademarks, and copyrights. “Intellectual Law” provides a consistent framework for IC, IT and Intellectual Property (IP). The article observes that legal protections for inventors cannot rely solely on what has proven to be a flawed combination of IT and IP. The article argues that greater emphasis on IC would improve both IT and IP. Because IC protects expectation interests it is essential for creating, developing, sharing, and applying intangible assets. IC generates gains from trade that enhance the benefits of inventors, innovators and adopters beyond what can be achieved by IT and IP alone. The discussion sets forth some broad principles for IC, examines the differences between IC and standard contracts, and identifies the main forms of IC.
Spulber, Daniel. 2018. Intellectual Contract and Intellectual Law. Journal of Technology Law & Policy. 23(1): 1-67.