Dispelling the Myth of Patents as Non-Rivalrous Property: Patents as Tools for Allocating Scarce Labor and Resources

by Richard S. Gruner
13 Colum. Sci. & Tech. L. Rev. 1 (Published Feb. 15, 2012)


The view of patents as non-rivalrous property is fundamentally flawed in a key respect that has been largely overlooked in the legal literature. Past scholarship has focused on downstream rivalry regarding the use of patented ideas, while neglecting upstream rivalry regarding the inputs to those ideas in many modern research settings, i.e., the efforts of inventors and the substantial research resources that support them.

By reexamining the impacts of patents on allocations of scarce resources, this Article helps to clarify two important roles of patents in modern, large-budget innovation: First, patent-influenced rewards help to attract scarce resources to innovation projects that would otherwise be devoted to alternative ends. Second, patent-influenced rewards provide prioritizing information to persons allocating scarce resources, establishing a basis to compare the relative value of commitments of resources  among innovation projects.

As innovation projects assume ever larger and more central functions in the United States economy, patents in the areas addressed by this Article will only increase in importance. The function of patents in influencing the allocation of resources to invention production has received remarkably little attention in law review analyses to date. This Article aims to rectify this imbalance and highlight the important functions that patents play in producing innovations valued by the public.

About the Author

Professor and Director, Center for Intellectual Property Law, The John Marshall Law School. B.S., California Institute of Technology; J.D., University of Southern California Law Center; L.L.M., Columbia University School of Law; Ph.D., University of California, Irvine.

Professor Gruner is the co-author of Intellectual Property in Business Organizations: Cases and Materials, a 2006 text that addresses the growing role of intellectual property in the founding, growth, and disposition of business enterprises, and Intellectual Property: Private Rights, the Public Interest, and the Regulation of Creative Activity, being published in 2007. His article Corporate Patents: Optimizing Organizational Responses to Innovation Opportunities and Invention Discoveries was rated by the editors of Intellectual Property Law Review as “One of the Best Articles on Intellectual Property” published in 2005-2006.

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