The Continuum of Excludability and the Limits of Patents

64 Pages Posted: 17 Jun 2013 Last revised: 3 Sep 2013

See all articles by Amy Kapczynski

Amy Kapczynski

Yale University - Law School

Talha Syed

University of California, Berkeley - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: May 1, 2013


In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Existing accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of information goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fully appreciated in the literature, nor have its implications for the standard justification for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importantly, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizable: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variable along a continuum, property rights in information, even if formally perfected, and even assuming away conventional transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternatives to patents such as government funding and gives us new insights about how to allocate such funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currently unrecognized implications that patents may have for values such as privacy and free speech.

Keywords: intellectual property, patents, information, public health, pharmaceuticals, checklist, statins, Demsetz, economics

Suggested Citation

Kapczynski, Amy and Syed, Talha, The Continuum of Excludability and the Limits of Patents (May 1, 2013). Yale Law Journal, Vol. 122, No. 7, 2013, UC Berkeley Public Law Research Paper No. 2280578, Yale Law & Economics Research Paper No. 472, Yale Law School, Public Law Working Paper No. 296, Available at SSRN:

Amy Kapczynski (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Talha Syed

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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