Chapter

Innovation, Competition, and the Patent System

Christina Bohannan and Herbert Hovenkamp

in Creation without Restraint

Published in print January 2012 | ISBN: 9780199738830
Published online May 2012 | e-ISBN: 9780199932702 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199738830.003.0005
Innovation, Competition, and the Patent System

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This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law can repair defects in the patent system. In a well-designed patent system, an issued patent would tell the world precisely what the patentee invented. This invention would be sufficiently “nonobvious” that one would not expect large numbers of others to develop it on their own without copying. But the system tends to break down if the invention is not substantial, meaning that others are likely to have discovered it on their own; either the concept of the invention or its description are so abstract that the patent spills over into areas that the patentee really did not contemplate and for which the patent itself did not provide sufficient notice; or the patentee is permitted to have “afterthoughts,” or claims for the invention that were not in mind when the patent application was originally filed. The current patent system suffers from failures of all three types.

Keywords: patent process; incentives; antitrust law; patents; inventions

Chapter.  19760 words. 

Subjects: Competition Law

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