… This argument proceeds in three sections. The first reviews some of the central features of private law that enable institutions like property and tort to operate without extensive, chronic judicial coercion. The next section proceeds to the dominant patent theory and shows that its incentive-centric framework is incompatible with private law. The final section points to the emerging transaction-based understanding of the patent system that focuses on ex ante transfer of technology and shows how it is built around fundamental features of private law.
Oskar Liivak, Private Law and the Future of Patents, Harvard Journal of Law and Technology, Volume 30, Special Symposium. LawArXiv, 22 December 2017.