Innovation, Competition, and the Patent System
This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law can repair defects in the patent system. In a well-designed patent system, an issued patent would tell the world precisely what the patentee invented. This invention would be sufficiently “nonobvious” that one would not expect large numbers of others to develop it on their own without copying. But the system tends to break down if the invention is not substantial, meaning that others are likely to have discovered it on their own; either the concept of the invention or its description are so abstract that the patent spills over into areas that the patentee really did not contemplate and for which the patent itself did not provide sufficient notice; or the patentee is permitted to have “afterthoughts,” or claims for the invention that were not in mind when the patent application was originally filed. The current patent system suffers from failures of all three types.
patent process, incentives, antitrust law, patents, inventions
Creation without Restraint: Promoting Liberty and Rivalry in Innovation
Hovenkamp, Herbert and Bohannan, Christina, "Innovation, Competition, and the Patent System" (2012). Book Chapters. 49.