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Secret Inventions

62 Pages Posted: 9 Dec 2011 Last revised: 29 Jun 2016

Jonas Anderson

American University - Washington College of Law

Date Written: 2011

Abstract

Patent law - and innovation policy more generally - has traditionally been conceptualized as antithetical to secrecy. Not only does the patent system require inventors to publicly disclose their inventions in order to receive a patent, but various patent doctrines are designed to encourage inventors to forego trade secrecy. This Article offers a critique of the law’s preference for patents. In particular, this Article examines whether and under what circumstances the law should prefer patents over secrets, and vice versa.

As an initial step towards a theoretically-supported system of inventor incentives, this Article constructs a framework that attempts to balance the public trade-offs of patenting and secrecy. Theoretically, the framework is based upon the insight that the fundamental economic rationale for the existence of the patent system - overcoming the market failure of informational public goods - is inapplicable when secrecy is viable. The framework highlights scenarios in which innovation can be advanced by encouraging secrecy, rather than patenting. The Article concludes by suggesting changes to current law that would encourage inventor use of secrecy, when appropriate.

Keywords: Patents, Trade Secrets, Innovation, Inventors

Suggested Citation

Anderson, Jonas, Secret Inventions (2011). 26 Berkeley Technology Law Journal 917 (2011); American University, WCL Research Paper No. 2011-33. Available at SSRN: https://ssrn.com/abstract=1970001

Jonas Anderson (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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