An Incrementalist Approach to Patent Reform

79 Pages Posted: 11 May 2005

See all articles by Daniel R. Cahoy

Daniel R. Cahoy

Pennsylvania State University - Mary Jean and Frank P. Smeal College of Business Administration


The optimal structure of the patent system in the United States as well as globally has been the subject of intense debate in recent years. The fear that patent rights are overly strong or too often cover non-inventive ideas has prompted many to question whether society is really coming out ahead. The call for dramatic reform seems to become stronger each year. Surprisingly, despite a great deal of analysis in the economic and legal literature, the quantitative impact of patents remains unclear. The failure to fully understand patent incentives is a barrier to optimal structure and use of the system; it may lead to less efficient development and dissemination of important, even life-saving, inventions.

This article suggests that our traditional policy of patent system design and reform is misguided. Attempts to comprehensively and rationally construct invention incentives through legal rules are exceedingly likely to fail due to the diverse goals and inherent complexity of the system. In view of the inability to effectively address all of the relevant policy levers in patent law, the article suggests instead utilizing a modulated, incrementalist method of strategic decision-making. General principles of a successful incrementalist approach to patent reform are discussed herein and compared to current reform initiatives.

Keywords: Patent, intellectual property, innovation, incrementalism

JEL Classification: F1, I1, O38, O39, K12, K34

Suggested Citation

Cahoy, Daniel R., An Incrementalist Approach to Patent Reform. New York University Journal of Legislation and Public Policy, Spring 2006. Available at SSRN: or

Daniel R. Cahoy (Contact Author)

Pennsylvania State University - Mary Jean and Frank P. Smeal College of Business Administration ( email )

310 Business Building
University Park, PA 16802
United States
814-865-6205 (Phone)
814-865-6284 (Fax)

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