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The patent system is built on the premise that exclusion leads to innovation. But a mounting body of evidence calls into question the assumption that “innovation by exclusion” – innovation based on excluding rivals– is the only, or even primary, way innovation happens today: nearly 50% of manufacturers got the idea for their most important new product from an outside source that shared it with them, 45-60% of patentees acquire patents to access the technology of others, and over 1,300 companies, including five of the ten top holders of patents, have pledged to share their patents with others. But because of the patent system’s traditional focus on exclusion, policymakers have paid less attention to how patents can better support the diffusion of technology through mechanisms such as disclosure, transfer, waiver, and the pursuit of freedom to operate. This paper addresses this gap by exploring in depth the way that the patent system can encourage the diffusion of technology between rivals and innovators, revealing a surprising number of overlooked levers within the patent system for encouraging innovation.

For example, making it easier to place inventions in the public domain through effective defensive publication, encouraging greater disclosure of patent-product relationships through the marking requirement, and changing the default for provisional applications to being open rather than closed, and for utility applications to publish upon filing, rather than after an 18-month delay, but with the right of inventors to opt-out of this default, would enhance patent disclosure by enabling technical information and permissions to use them to be available earlier to the world. Improving reporting and discovery of patent information, including ownership, availability for licensing, licensing status in the case of publicly funded inventions in accordance with existing law, patent licenses, and standards commitments, could boost markets for technology. Making it easier to waive patent rights and rely on waivers of patent rights, through the creation of a government registry of patent rights, and creating, e.g. an “open” or “defensive only” option that allows patentees to pay discounted maintenance fees in exchange for promising to use their patents only defensively, or to give up certain rights, akin to “license of right” schemes in the UK and Germany, would increase freedom to operate. As innovation increasingly takes place in open and closed modes, and often both, the patent system, by offering more ways for patentees to decide the fate of their inventions, can increase its relevance to “all of the above” types of innovation.


Forthcoming in Southern California Law Review

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