In the Shadow of Innovation

56 Pages Posted: 28 Apr 2009 Last revised: 28 Aug 2012

Date Written: April 27, 2009


We are in the midst of the intellectual property wars. Scholars, judges, legislators, corporations, creators and inventors disagree about the role of intellectual property rights. Yet, surprisingly everyone agrees about innovation - everyone loves innovation. Innovation appears everywhere: In legal scholarship, case law, legislative hearings, newspapers, and blogs. It is uniformly admired and aspired to - though almost never questioned.

Innovation is often assumed to have historically held a central role in the technology regulating legal regime. The Article presents a study of case law, which demonstrates that contrary to common belief, the celebration of innovation is, in fact, a relatively recent trend originating in the mid-1980s - at the advent of the intellectual property wars.

The Article critically examines this celebration of innovation. It argues that while innovation is promoted as the key to progress and advancement of human welfare, the exclusive status it obtained frustrates the very same goals. While innovation draws our attention to the beginning of the technological life cycle, the legal regime dedicates sparse attention and few resources to the cycle’s subsequent stage: the diffusion process of new technologies. Yet, the promotion of progress and human welfare is just as dependent on the technology’s diffusion - its social adoption process - as it is reliant on its innovation.

To support this argument, the Article presents the case-studies of digital music and genetic testing. It shows that while the legal regime focuses on the effects of copyright enforcement on digital music innovation and the ramifications of gene patents for innovation in the field of genetics, it fails to invest its resources to resolve the social adoption problems of these very same technologies. The Article concludes by proposing ways toward resolving the diffusion delays of genetic testing and digital music technologies.

Keywords: Innovation, diffusion, law and technology, genetic testing, patent, copyright, digital music, intellectual property

Suggested Citation

Bernstein, Gaia, In the Shadow of Innovation (April 27, 2009). Cardozo Law Review, Vol. 31, No. 6, p. 2257, 2010, Seton Hall Public Law Research Paper No. 1395779, Available at SSRN:

Gaia Bernstein (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102
United States

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