On the Sociology of Patenting

32 Pages Posted: 6 Mar 2016 Last revised: 27 Dec 2016

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: March 2, 2016


Recent commentary on the patent system has argued that there is little evidence supporting the incentive justification for patenting, so that continued faith in patents constitutes a kind of irrational adherence to myth or falsehood. While an obituary for the incentive theory of patenting is likely premature, the concept that the patent system is based upon myth should not be surprising. Over the past 30 years, some of the most prominent work in sociology has focused on social ordering, including legal ordering, that is found to be structured around prevalent social narratives or myths. Explicitly rejecting the economic construct of rational behavior, such “new institutional” approaches to social ordering recognize that organizations adopt practices and structures according to widely recognized scripts or conventions that lend legitimacy to their goals. In this essay I suggest that the known behavior of patenting firms likely fits the models developed in new institutional sociology: firms patent because other firms patent, because investors expect them to patent, and because patents validate the firm as innovative and reputable. Following such conventions is socially rational, but not necessarily economically rational. Applying new institutional approaches to patenting could explain several pervasive yet puzzling behaviors within the patent system, and moves us away from interminable fruitless arguments over the idealized efficiency or inefficiency of patents.

Keywords: patent, sociology, innovation, new institutionalism, intellectual property, myth

JEL Classification: O31, O32, O33, O34, A14, O17

Suggested Citation

Burk, Dan L., On the Sociology of Patenting (March 2, 2016). 101 Minnesota Law Review, 421 (2016); UC Irvine School of Law Research Paper No. 2016-15. Available at SSRN: https://ssrn.com/abstract=2740947

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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