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

in The Patent Crisis and How the Courts Can Solve It

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 ... More

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.Less

Farmers’ Rights versus Intellectual Property Rights

Sophy K. Joseph

in Customary Rights of Farmers in Neoliberal India: A Legal and Policy Analysis

At the outset, the conventional IPR norms fail to protect the traditional knowledge of the farmers and their contributions through their limited contours of criteria-based protection and rigid rights ... More

At the outset, the conventional IPR norms fail to protect the traditional knowledge of the farmers and their contributions through their limited contours of criteria-based protection and rigid rights framework. This chapter extensively analyses theories that support IPRs over plant genetic resources and observe the fall-outs of such theories in addressing customary rights of the farmers. While there are economic theories to support private property rights, it is also important to discuss theories that advocate inclusionary rights regime. Theories ranging from libertarian to egalitarian accommodate rights of farmers to resume their traditional activities without any restrictions. Non-conventional IPR norms that tried to accommodate the principle of inclusion though biodiversity and traditional knowledge protection is also analysed with its limitations. Principles such as state sovereignty, prior informed consent, and equitable benefit-sharing have not found much enforcement so far in the developing countries. This chapter further argues that the economic incentives that the farmers have been provided with compared to the benefits of multinational breeders are not equitable or justiciable under the realm of rights framework.Less

Conclusion: Copies and Creativity

Kal Raustiala and Christopher Jon Sprigman

in The Knockoff Economy: How Imitation Sparks Innovation

This chapter provides some conclusions on the issues of creativity and copying. The monopoly theory is hostile to imitation because imitation undermines later rewards, which destroys the incentive to ... More

This chapter provides some conclusions on the issues of creativity and copying. The monopoly theory is hostile to imitation because imitation undermines later rewards, which destroys the incentive to innovate. But industries in fashion, food, fonts, and football, where copying is free and often legal, challenge the basic premise of the monopoly theory. Copying is simply a matter of practicality and innovations are open to imitation. In consideration of the monopoly theory, the innovative industries should be weakly creative. Yet in reality, these industries are vibrantly creative.Less

Introduction

Kal Raustiala and Christopher Jon Sprigman

in The Knockoff Economy: How Imitation Sparks Innovation

This introductory chapter provides a background to the wisdom of innovation and imitation. It explores a variety of industries and arts in which copyright and patent do not apply or are not used. ... More

This introductory chapter provides a background to the wisdom of innovation and imitation. It explores a variety of industries and arts in which copyright and patent do not apply or are not used. Copying can harm creativity and some rules are necessary, but the effects of copying on creativity are not as simple as the monopoly theory suggests. Industries that survive and thrive in the face of pervasive copying indicate that creativity is more resilient than commonly believed and that copying has unappreciated virtues.Less