Intellectual Property as a Law of Organization

69 Pages Posted: 12 Jun 2010 Last revised: 28 Nov 2014

Date Written: June 10, 2010


The incentive thesis for patents is challenged by the existence of alternative means by which firms can capture returns on innovation. Taking into account patent alternatives yields a robust reformulation of the incentive thesis as mediated by organizational form. Patents enable innovators to make efficient selections of firm scope by transacting with least-cost suppliers of commercialization inputs. These expanded transactional opportunities reduce the minimum size of the market into which any innovator – or the supplier of any other technological or production input – can attempt entry. Disaggregation of the innovation and commercialization process then induces the formation of secondary markets in disembodied technology inputs. These organizational effects over transactional, firm and market structure generate specialization economies that minimize innovation and commercialization costs, which in turn exerts incentive effects consistent with the standard thesis and market growth effects that extend beyond it. Conversely, the absence of patents, and the resulting obstacles to bargaining over ideas, can compel innovators to select integrated structures that inflate commercialization costs, resulting in distorted R&D investment and product output. These proposed relationships are broadly consistent with organizational patterns in selected historical and contemporary technology markets, as illustrated in particular by disintegration processes in the “fabless” segment of the semiconductor market.

Suggested Citation

Barnett, Jonathan, Intellectual Property as a Law of Organization (June 10, 2010). Southern California Law Review, Forthcoming, USC CLEO Research Paper No. C10-10, Available at SSRN:

Jonathan Barnett (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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