Beyond Incentives: Expanding the Theoretical Framework for Patent Law Analysis

Abstract

Economic theories dominate patent law and policy. In evaluating patent law rules, scholars and policy makers typically weigh the effects of such rules on the incentives provided by patents against the costs associated with them. However, solely focusing on the economic costs and benefits may often lead to an analytical dead end. Such narrow perspective also fails to take into account alternative theoretical foundations of the patent system, such as the labor and personality theories, which provide different rationales for patent protection.

In this Article, I urge a broader use of such non-economic theories in discussions regarding the optimal design of the patent system. Using the perplexing case of cumulative innovation as a case in point, this Article demonstrates how the analysis under the labor and personality theories may offer significant guidance to policy makers in certain instances where the economic analysis of patent law does not provide a definitive solution. Integrating these non-utilitarian theories into the analytical framework may ultimately result in a patent system that not only incentivizes innovation but also promotes other important goals such as providing just reward for labor and enabling individuals to develop their personality.

Keywords: intellectual property, patent law, economic theory, labor theory, personality theory, distributive justice