Heterogeneity in Patent Theory: Why We Can't Agree Why We Patent

in The Patent Crisis and How the Courts Can Solve It

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226080611
Published online March 2013 | e-ISBN: 9780226080635 | DOI:
Heterogeneity in Patent Theory: Why We Can't Agree Why We Patent

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This chapter describes the major theories of patent law. Edmund Kitch's prospect theory strongly emphasizes the role of a single patentee in coordinating the development, implementation, and improvement of an invention. A prospect theory indicates that patents should be granted early in the invention process and should have broad scope and few exceptions. Kenneth Arrow's argument suggests a much more limited role for intellectual property rights. Both Joseph Schumpeter's monopoly incentive theory and Arrow's competition theory involve somewhat stylized models of innovation involving single inventions. Cumulative innovation theory contemplates patents on smaller inventions, but it would give less complete rights over those inventions than would prospect theory. The patent thicket problem suggests that patents should be narrowed so that the problem of overlapping scope will not arise in the first instance.

Keywords: patent law; prospect theory; Kenneth Arrow; competition theory; Edmund Kitch; Joseph Schumpeter; monopoly incentive theory; intellectual property rights

Chapter.  5449 words. 

Subjects: Intellectual Property Law

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