I wrote earlier on ex post and ex ante justifications for patents, arguing how ex post bases can complement, or to some limited extent displace, the classical ex ante incentive theory of the problem of public goods. A summary glance over the patent policy landscape reveals that ex post justifications for patents have grounding in policy, academic literature and the Patent Clause.

In the policy world, the 1980 Bayh-Dole Act, one of the most important legislations of our time, is premised on the view that patents provide an efficient mechanism by which to refine, improve on and commercialize inventions. See here. As supporting evidence, I recently corresponded with Joyce Brinton, former director of Harvard University’s Office for Technology and Trademark Licensing, who stated that patenting and licensing technology (aka commercializing) is a way for Harvard to better fulfill societal interests by helping to push academic research into practical application.

In academic literature, scholars have noted that to to properly conceptualize patent policy, its important to note that innovation occurs more or less, not that it either occurs or fails to occur. David Evans and Anne Layne-Farrar, Software Patents and Open Source: The Battle Over Intellectual Property Rights, 9 Va. J.L. & Tech. 10, 51 (2004). Consequently, patents need not prove necessary for innovation, since innovation may well occur to some extent without them. Patents can contribute to innovation by facilitating more innovation than that which would occur in their absence. See Adam Jaffe testimony before House Cmte, 2007.

Elsewhere, Dan Burk and Mark Lemley argued that software innovation, marked by incremental improvements, may benefit from patents that are easy to obtain, to incent innovators to improve on existing inventions. Designing Optimal Software Patents, Intellectual Property Rights In Frontier Industries: Software and Biotechnology, Pg. 93, Robert Hahn, ed., (2005).

In terms of industrial organization, ex post justifications for patents offer descriptive value for the emergence of intermediate market players such as Intellecctual Ventures, the licensing practices of firms like Microsoft/IBM, and help explain the prevailing industrial model of “open innovation.”

Regarding the Patent Clause, Lawrence Solum noted that the phrase “to Promote the Progress of Science and Useful Arts” can entail both 1) diffusion and distribution of innovation, and 2) advancement of innovation. Congress’s Power to Promote the Progress of Science: Eldred v. Ashcroft, 36 Loy. L.A. L. Rev. 1, 44 (2002). Diffusion is the process by which inventions/knowledge are pushed to society and refined. See Bronwyn Hall, Innovation and Diffusion, NBER Working paper No. W10212 (2004). Thus, ex post theories of patents, including the commercialization, postive externality-spillover, transactional and prospect theories would fall in-line with the diffusion-constitutional basis for patents.

Ex ante and ex post arguments over patents should be given attention, particularly in popular discourse, corresponding roughly to how much each is needed to justify patents. I believe ex post justifications for patents have received due recognition by scholars, industry leaders and policy makers, yet patent critics seem disproportionately focused on the common, ex ante, basis for patents, in popular discourse.

posted by Noel Le @ 7:04 AM | Academia, Patents

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