Bargaining for Innovation

68 Pages Posted: 12 Oct 2020 Last revised: 22 Apr 2021

See all articles by Elizabeth I. Winston

Elizabeth I. Winston

Catholic University of America (CUA) - Columbus School of Law

Date Written: August 22, 2020


Reward drives innovation. For this reason, Congress has enacted a system of patents, trademarks, and copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests—mandating disclosure of the innovation while legislating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient for innovation, and innovators are relying on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the public’s interest. It is time to reform public ordering to protect the public’s interest while providing sufficient reward to incentivize innovation.

Keywords: patent, intellectual property, copyright, trademark, apples, agricultural, plant, food, license, contract, innovation, public ordering, private ordering, public interest

JEL Classification: K12, O31, O34, O38

Suggested Citation

Winston, Elizabeth I., Bargaining for Innovation (August 22, 2020). 66 Villanova Law Review 119, Available at SSRN:

Elizabeth I. Winston (Contact Author)

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

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