Less Protection, More Innovation?
Murat C. Mungan
Florida State University - College of Law
March 27, 2012
Supreme Court Economic Review, Forthcoming
FSU College of Law, Public Law Research Paper No. 507
FSU College of Law, Law, Business & Economics Paper No. 11-10
Reward theory, which represents the conventional economic view, suggests that the optimal strength of patents depends on a use-creation tradeoff; the inevitable production of dead-weight losses in the ex post market for the invention for the purpose of fostering technological progress. This paper demonstrates a caveat in this approach by using game theory. Strong patents increase the value of becoming an inventor. As such, more firms are attracted to R&D. However, each firm rationally discounts the probability that it will be the first to obtain a patent, and may therefore reduce or abandon its R&D investment. This leads to a lower invention probability per R&D firm, which in turn may lead to a lower aggregate invention probability. In such cases, weaker patent protections can simultaneously foster innovation and eliminate dead-weight losses in the ex post market for the invention. Hence, contrary to the conventional view, the use-creation tradeoff does not exist globally.
Number of Pages in PDF File: 19Accepted Paper Series
Date posted: June 21, 2011 ; Last revised: August 27, 2012
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