A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Toshiko Takenka
Chapter 1: On the Economics of Patent Law and Policy
F. Scott Kieff 1 1 Introduction Although important literatures explore patent systems from various perspectives, such as morality, gender, race, etc., most patent systems in most industrialized nations are heavily influenced by some version of a utilitarian law and economics perspective.2 These law and economics approaches generally are in agreement in seeing the patent system as a tool for achieving some particular goals; but generally disagree on the goals, as well as whether patents are effective in achieving those goals. This chapter explores some of the major law and economic approaches to patents. In particular, it examines the different policy goals these approaches advance and the major areas of significant conflict in contemporary policy debates about patents. The basic theme is that enforcing patents as property rights can improve the socially constructive coordination that facilitates the complex process of commercializing innovation thereby improving both access and competition. By contrast, avoiding property treatment can facilitate the socially destructive coordination among large players employing a ‘keiretsu’ strategy of anticompetitive collusion.3 1 F. Scott Kieff runs the Hoover Project on Commercializing Innovation, which studies the law, economics, and politics of innovation, and is available at www.innovation.hoover.org. Comments are welcome at email@example.com. 2 See, e.g., Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988). For a discussion of the intellectual history of patents with a focus on the U.S. patent system see, e.g., Adam Mossoff, Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause, 87...
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