Patent Schisms

48 Pages Posted: 9 Mar 2018 Last revised: 1 Dec 2018

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Date Written: March 6, 2018


Parties frequently obtain patents for one purpose, only to use those patents for another. This Article calls such divergences between parties’ initial motivations to obtain patents and those patents’ predominant uses later on “patent schisms.”

Because traditional patent law theories typically treat the purposes of patents as static, scholars have neglected to explicitly examine patent schisms and the reasons behind them. This is so despite the pervasiveness of patent schisms in a variety of important contexts. Those contexts include the patenting behaviors of early-stage companies, later-stage companies, so-called “patent trolls,” and universities. In fact, patent schisms lie at the heart of some of the most controversial patent law topics, including whether patents should be considered a form of personal property or, instead, as a regulatory right.

This Article examines patent schisms and adds to the patent literature in three principal ways. First, it provides an account of the ubiquity of patent schisms in a variety of important settings. Second, it articulates three theories explaining how and why patent schisms arise. These hypotheses include the proposition that patenting an invention often creates economic and psychological incentives to ultimately use that patent in defiance of a party’s original motivation to obtain the patent. Finally, the Article examines the normative and theoretical implications of the pervasiveness of patent schisms and the explanations behind them. These include briefly assessing whether treating patents as a form of personal property is the correct approach to ensuring that the patent system serves its constitutional purpose of promoting the progress of “science and the useful arts.”

Keywords: Patents, property, intellectual property, IP, innovation

JEL Classification: K10, K11, K19, K20, K30

Suggested Citation

Asay, Clark D., Patent Schisms (March 6, 2018). 104 Iowa Law Review 45 (2018); BYU Law Research Paper No. 18-03. Available at SSRN:

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

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