Chapter

Parts of the Elephant: How Industry Perspective Drives Patent Theory

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: http://dx.doi.org/10.7208/chicago/9780226080635.003.0007
Parts of the Elephant: How Industry Perspective Drives Patent Theory

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This chapter argues that the disagreements about how the patent system promotes innovation can be traced to the industry-specific character of the patent system. The prospect vision of patents maps most closely onto invention in the pharmaceutical industry. Patents map well onto products in the pharmaceutical industry. Patents in the chemical and pharmaceutical industries were more likely to be licensed ex ante than patents in any other field. Competitive innovation theory fits business methods, arguably fits the Internet, and fit software. Cumulative innovation theory, which balances rights given to initial inventors with rights given to improvers, makes sense for the modern software industry. The structure of the biotechnology industry appears likely to run high anticommons risks. The semiconductor industry may be characterized by anticommons problems since integration of many different inputs is necessary to produce a commercial semiconductor product.

Keywords: patent system; pharmaceutical industry; competitive innovation theory; cumulative innovation theory; software industry; biotechnology industry; semiconductor industry; anticommons

Chapter.  5761 words. 

Subjects: Intellectual Property Law

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