Don’t Assume a Can Opener: Confronting Patent Economic Theories with Licensing and Enforcement Reality

by Robert P. Greenspoon and Catherine M. Cottle
12 Colum. Sci. & Tech. L. Rev. 194 (2011) (Published June 2, 2011)

Abstract

Many different kinds of entities use the United States patent system, from individual inventors, to start-ups, to patent assertion entities, to massive operating companies. Meanwhile, “reward theory,” “prospect theory,” and “commercialization theory” are three theories intended to explain the justifications for, or social costs and benefits of, a patent system.  Yet each theory barely acknowledges what goes on during actual patent acquisition, licensing or enforcement, such as transaction costs and litigation uncertainties. This article considers prior economic analyses of the patent system in this new light – patent economic theories, compared against the types of patent-using entities, compared against the costs and uncertainties of patent acquisition, licensing and enforcement.

About the Authors

Robert P. Greenspoon is a trial and appellate attorney who cofounded Flachsbart & Greenspoon, LLC, a full service boutique intellectual property law firm.  Catherine M. Cottle holds a Bachelor of Arts degree in economics from the University of Chicago.  She is now a law student at Chicago Kent College of Law.

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