Anything Under the Sun Made by Humans: Patent Law Doctrines as Endogenous Institutions for Commercializing Innovation

15 Pages Posted: 4 Jul 2013  

James E. Daily

Washington University in St. Louis - Center for Empirical Research in the Law

F. Scott Kieff

George Washington University - Law School; Stanford University - Hoover Institution on War, Revolution and Peace

Date Written: July 3, 2013

Abstract

This Essay outlines a comparative institutional analysis among various doctrines in patent law to show how they can have different impacts on the way inventions are commercialized. It builds on a prior body of work about the positive role that property rights in patents can play in commercializing innovation to show how recent shifts in approaches to the particular legal doctrine known as patentable subject matter can be expected to have different effects on the commercialization of inventions than prior approaches. It concludes that, to the extent society wants to increase the overall rate of invention commercialization and increase overall competition as reflected in diversity in firm size among participants in the markets for commercializing innovation, society should consider reversing course on the law of patentable subject matter and return to an approach that is closer to the "anything under the sun made by man" view that was championed by the Supreme Court in the 1980s and by Congress through most of the second half of the twentieth century, updating only its gender biased language.

Suggested Citation

Daily, James E. and Kieff, F. Scott, Anything Under the Sun Made by Humans: Patent Law Doctrines as Endogenous Institutions for Commercializing Innovation (July 3, 2013). Emory Law Journal, Vol. 62, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2289340

James E. Daily (Contact Author)

Washington University in St. Louis - Center for Empirical Research in the Law ( email )

One Brookings Drive
St. Louis, MO 63130
United States

HOME PAGE: http://cerl.wustl.edu

F. Scott Kieff

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4644 (Phone)

Stanford University - Hoover Institution on War, Revolution and Peace ( email )

434 Galvez Mall
Stanford, CA 94305-6010
United States
650-723-3678 (Phone)

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