An Incrementalist Approach to Patent Reform

Abstract:     
The optimal structure of the patent system in the United States as well as globally has been the subject of intense debate in recent years. The fear that patent rights are overly strong or too often cover non-inventive ideas has prompted many to question whether society is really coming out ahead. The call for dramatic reform seems to become stronger each year. Surprisingly, despite a great deal of analysis in the economic and legal literature, the quantitative impact of patents remains unclear. The failure to fully understand patent incentives is a barrier to optimal structure and use of the system; it may lead to less efficient development and dissemination of important, even life-saving, inventions.

This article suggests that our traditional policy of patent system design and reform is misguided. Attempts to comprehensively and rationally construct invention incentives through legal rules are exceedingly likely to fail due to the diverse goals and inherent complexity of the system. In view of the inability to effectively address all of the relevant policy levers in patent law, the article suggests instead utilizing a modulated, incrementalist method of strategic decision-making. General principles of a successful incrementalist approach to patent reform are discussed herein and compared to current reform initiatives.

Keywords: Patent, intellectual property, innovation, incrementalism

JEL Classifications: F1, I1, O38, O39, K12, K34

Accepted Paper Series