Patents and the Regress of Useful Arts

by Dr. Andrew W. Torrance & Dr. Bill Tomlinson

10 Colum. Sci. & Tech. L. Rev. 130 (2009) (Published May 15, 2009)


Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is to simulate the behavior of inventors and competitors experimentally under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems (―PatentSim‖), this study compares rates of innovation, productivity, and societal utility. PatentSim uses an abstracted and cumulative model of the invention process, a database of potential innovations, an interactive interface that allows users to invent, patent, or open source these innovations, and a network over which users may interact with one another to license, assign, buy, infringe, and enforce patents. Data generated thus far using PatentSim suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These data also indicate that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection. The results of this study are inconsistent with the orthodox justification for patent systems. However, they do accord well with evidence from the increasingly important field of user and open innovation. Simulation games of the patent system could even provide a more effective means of fulfilling the Constitutional mandate “to promote the Progress of . . . useful Arts” than does the orthodox assumption that technological innovation can be encouraged through the prospect of patent protection.

About the Author

Dr. Andrew W. Torrance is an Associate Professor at the University of Kansas School of Law and a Research Associate at the Biodiversity Institute at the University of Kansas. Dr. Torrance received his Ph.D. in biology from Harvard University and his J.D. from Harvard Law School.

Dr. Bill Tomlinson is an Assistant Professor in the Informatics Department of the Bren School of Information and Computer Sciences at the University of California, Irvine. Dr. Tomlinson received his Ph.D. in media arts and sciences from The Media Lab at the Massachusetts Institute of Technology.

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