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The Structure of Intellectual Property Law

The Structure of Intellectual Property Law

Can One Size Fit All?

ATRIP Intellectual Property series

Edited by Annette Kur and Vytautas Mizaras

This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.

Chapter 4: Comment: Some Economic Considerations Regarding Optimal Intellectual Property Protection

Claudia Schmidt

Subjects: law - academic, intellectual property law


Claudia Schmidt* INTRODUCTION 1. Since the landmark articles of Fritz Machlup1 and Edith Penrose,2 economic scholars and researchers have put a lot of effort into further illuminating and deepening the economic analysis of the social value of patents. However, although a lot of research has been undertaken, lawyers and legal scholars often complain that no significant advancements have been made in the literature. According to these complaints, although in some cases economics proves positive for the patent system, both empirical and theoretical results in economic theory on (overall) social benefits are indecisive: On the one hand we can assume that patent incentives attract resources to the production of patentable inventions, that is, patents offer incentives to innovators. At the same time, we cannot be sure that society will be better off because of the patents. In other words, critics of the economic theory of patents argue that the results are rather inconclusive.3 I strongly disagree with this conclusion. The results of economic works are not necessarily inconclusive; rather it is not possible to make an overall assessment of the intellectual property system in general or the patent system in detail. Instead, economic results show an inevitable differentiation. In certain cases and to a certain extent, patents are not necessary to promote innovation, that is, to appropriate the returns of research * Research Assistant, Chair of Economic Policy, Philipps University of Marburg, Germany. 1 Machlup, Fritz (1958), An Economic Review of the Patent System. Washington: US Government Printing Office. 2 Penrose,...

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