Patent Variation: Discerning Diversity Among Patent Functions

Abstract

This Article describes and analyzes qualitative interview data collected over a five-year period. The goal of the interviews was to explore the roles of intellectual property (“IP”) in IP rich fields. Interviews were with diverse actors in a wide-range of industries: film, book publishing, visual arts, internet commerce, biology, engineering, chemistry, computer science. The data described and analyzed in this Article focuses on the specific question about the diverse functioning of patents in the subset of interviewees who are scientists and engineers, their lawyers and business partners. The Article proceeds in two parts. Part I describes the empirical dimension of the research in more detail, highlighting the unique qualitative aspect of this research and comparing it to the more common quantitative method. Part II describes the variation across the interviews, culling from the data the diverse ways patents function beyond the doctrinally orthodox and predominantly singular explanation that patents facilitate the recuperation of research and development costs through exclusivity. The Article concludes with some thoughts on the implications of this diversity in light of the traditional and largely monolithic explanation for patent rights in the United States.

Keywords: intellectual property, patents, empirical legal studies, property, law and economics, law and social science, law and the humanities