Article Summary: The Myth Of The Rhetor

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Final Article summary: THE MYTH OF THE SOLE INVENTOR, The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly given incentives. The result is a real problem for classic theories of patent law. Maybe the problem is not with our current patent law, but with our current patent theory. But the dominant alternative theories of patent law don't do much better. If patent law in its current form can be saved, we need an alternative justification for granting patents even in circumstances of near-simultaneous invention. Another possibility: patent rights encourage patent races, and that might actually be a good thing. Patent racing cannot…show more content…
While patents don't seem to be encouraging the development of discrete new ideas that no one else has, that doesn't mean they aren't motivating innovation at all. The incentives provided by a patent, in other words, must be filtered through the realities of a patent race. In some (though by no means all, or even a majority) the inventors are acutely aware of the possibility of patent rights and of the risk that others might obtain the core patents. As John Duffy has observed, the benefit of a race is that people run faster than they otherwise would. As a result, a patent race should both cause inventions to be made sooner than they otherwise would be and, because patent terms are measured from the filing date, cause the resulting patents to expire earlier than they otherwise would. It is possible that patents encourage putative inventors to race to achieve a result And that doing so gets us a greater variety of inventions more quickly than we would have in the absence of patent protection. As a descriptive matter, the evidence suggests that for better or worse the patent system is about patent…show more content…
Once we introduce multiple inventors, the effect of the patent system on invention becomes some combination of the positive and negative incentives. To know whether patent racing theory justifies patent protection, we need to do the same sort of balancing as in incentive-to-invent theory. at what cost before we can conclude that racing theory justifies patent law. We know the differences exist for every other patent theory, and it seems likely that will be true of patent races as well. We need to think about how patents play into the motivations of all participants, not just those who end up seeking a patent. Patent racing is not-yet-a developed theory of patent incentives. Given the historical evidence, if you are skeptical of the benefits of patent racing, you probably ought to be skeptical of the benefits of the patent system as a whole. The resulting disconnect is a problem not only for patent theory but for the design of the patent system, which seems to be based on assumptions about invention that are not borne out by

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