An International Research Handbook
Edited by Ruud E. Smits, Stefan Kuhlmann and Phillip Shapira
Chapter 9: Co-evolution of Intellectual Property Protections and Innovation: The Case of ‘Continuation’ Patents in the United States
9. Co-evolution of Intellectual Property Protections and Innovation: The Case of 'Continuation' Patents in the United States Stuart J.H. Graham INTRODUCTION This chapter considers the co-evolution of intellectual property (IP) protections and innovation policy within the context of a particular IP institution: the 'continuing' patent application available in the United States. While not generally available elsewhere in the world, the continuation procedure allows a US patent applicant to postpone the granting of a patent, affording inventors several strategic opportunities, among which are delay and secrecy. This chapter also demonstrates the perverse effects of so-called 'submarine patents' - continuation patents that surface in a marketplace in which the patented technology has been widely embraced by adopters unaware that a valid patent was pending and hidden from view. In addition to examining several specific cases of submarine patents in which the patentee was able to extract extraordinary economic rents, the chapter investigates the technological and historical drivers of the development of the continuation rules. The chapter examines how and why innovators in the semiconductor and pharmaceutical technologies have employed the continuation patent application procedure, demonstrating that in each of these important sectors the continuation procedure has been widely used, offering the opportunity for strategic gain. At least since North (1990), we have understood that institutions (or 'the rules of the game') co-evolve with other economic processes. Innovation is one such economic process that has co-evolved with the institutions that support and constrain it. In this chapter, the term 'innovation' is used in...
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