The Twisted Path to Innovation Policy
Why did intellectual property law develop in comparative isolation from any economic concept of growth? Twentieth-century antitrust law, contract law, and even trademark law became acutely aware of their role in facilitating markets and economic development, but patent law adhered to a functionally obsolete conception of property rights and boundaries. One example of this difference is the pervasive role of economics in the 1950 Celler-Kefauver amendments to the antitrust merger law, and its relative absence from the contemporaneous debates over the 1952 Patent Act. The powerful “Schumpeter-Arrow” literature on innovation and economic growth came to have a much greater influence on antitrust law than patent law. The best explanation is that because innovation is so poorly understood IP law became a playground for special interest groups, dominated by producers, while antitrust became much more attentive to consumer welfare concerns.
intellectual property, patent, innovation, Schumpeter, Arrow, antitrust
The Opening of American Law: Neoclassical Legal Thought, 1870-1970
Hovenkamp, Herbert, "The Twisted Path to Innovation Policy" (2014). Book Chapters. 71.