Weighing Intellectual Property: Can We Balance the Social Costs and Benefits of Patenting?

History of Science, Forthcoming

24 Pages Posted: 9 Jan 2019

See all articles by Mario Biagioli

Mario Biagioli

University of California, Davis - School of Law

Date Written: October 20, 2018

Abstract

The scale is the most famous emblem of the law, including intellectual property (IP). Because IP rights impose social costs on the public by limiting access to protected work, the law can be justified only to the extent that, on balance, it encourages enough creation and dissemination of new works to offset those costs. The scale is thus a potent rhetorical trope of fairness and objectivity, but also an instrument the law thinks with — one that is constantly invoked to justify or to question the extent of available IP protection. The balancing act that underlies the legitimacy of IP is, however, literally impossible to perform. Because we are unable to measure the benefits that IP has for inventors or the costs it has for the public, the scale has nothing to weigh. It conveys a clear sense that IP law can be balanced, but in fact propagates only a visible simulacrum of balance — one that is as empty as it is powerful.

Keywords: patents, intellectual property, patent bargain, cultural environmentalism, quantification

Suggested Citation

Biagioli, Mario, Weighing Intellectual Property: Can We Balance the Social Costs and Benefits of Patenting? (October 20, 2018). History of Science, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3307623

Mario Biagioli (Contact Author)

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

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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