Markets for Patent Scope

IP Theory, Vol. 1, No. 2, pp. 42-49, 2011

San Diego Legal Studies Paper No. 11-053

8 Pages Posted: 7 Feb 2011 Last revised: 22 Oct 2013

See all articles by Ted M. Sichelman

Ted M. Sichelman

University of San Diego School of Law

Date Written: April 29, 2011


A recurring issue in IP theory is how the scope of patent rights affects invention and commercialization. Traditionally, there has been a dichotomous debate: one view stemming from Ed Kitch, promoting broad "prospect" - style patents in the hands of a single inventor, and another view from Robert Merges and Richard Nelson, advocating relatively narrow scope to encourage competition in innovation. More recently, a variety of scholars have set forth more nuanced positions. My thesis here is that the variance in these views can be traced to differing empirical attitudes about how well the market functions relative to a patent system in promoting invention, commercialization, and coordination among market actors in the R & D process. By investigating these empirical differences, scholars can more rigorously address a number of important issues not fully examined by the literature, such as the cumulative nature of technology commercialization (not just invention), the tailoring of patent scope by industry, collaborative innovation, and the decoupling of patent rights to separately address invention and commercialization incentives.

Keywords: patents, scope, Merges, Kitch, Nelson, IP theory

JEL Classification: O34

Suggested Citation

Sichelman, Ted M., Markets for Patent Scope (April 29, 2011). IP Theory, Vol. 1, No. 2, pp. 42-49, 2011, San Diego Legal Studies Paper No. 11-053, Available at SSRN:

Ted M. Sichelman (Contact Author)

University of San Diego School of Law ( email )

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