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86 Tul. L. Rev. 1163 (2011-2012)

handle is hein.journals/tulr86 and id is 1173 raw text is: ESSAY Maturing Patent Theory from Industrial Policy to Intellectual Property Oskar Liivak* We have always known that technological progmss is important and this country has always aimed topivmote it. A large part of thatarsponsibility has fallen on the shoulders of the patent system. Embarassmgly despite over two hundred years of expenence, we still do not actually know if the patent system helps or hinders technological progrss. This Essay argues that the pmblem is not the patent system but rather patent theory Patent theory suffers from thee linkedproblems: exceptionalness, indeterminacy and animosity First patent law is seen as a necessarily unique exception to the oveall market economy By artificially making patenting a profitable activity the patent system is a form of industial policy that anus to encourage people to enter the nsky business of iventing Second we have never confidently been able to conclude that the benefits of this ndustinal policy outweigh its costs. Thb4 and perhaps just as important, that story inhewrntly creates animosity among important interest groups. The resulting ongoing indeterminacy and animosity have prevented the patent system from matunng into an accepted stable legal institution. We can and must do better We need an institution that is stable, reliable, and accepted 7his Essay argues that we should rject the long-standing 'legal incentivenarative and begin loolng for a better altemative. This Essay points toward an accepted stable model sitting in plain sight: traditionalpropery We have (inconectly) thought that traditional property and its economic system for exchange cannot provide guidance for the exotic nontival world of the patent system. This Essay aims to show that those assumptions are wrong, and it begins outining a patent narrative where patents ar seen as an important and natural extension of traditional property and indeed the overall economy of tangible goods. Ther ar good reasons to think that such a system might provide what current patent theory cannot: the basis for a determinate andacceptedpatent system. I. INTRODUCTION.. ........................................1164 1I. THE LEGAL INCENTIVE PATENT SYSTEM: ISOLATED, INDETERMINATE, AND SUSPECT ................... .....1168 A. The Legal Incentive Patent System and Its Exceptionalism ...................... ..... 1169 B. Legal Incentives and Patent Indeterminism ... ..... 1173 C Legal Incentives and PatentAninosity........................... 1176 * © 2012 Oskar Liivak. I want to thank Greg Alexander, Hanoch Dagan, Mark Lemley, Clarissa Long, Glynn Lunney, Jr., Eduardo Pefialver, David Taylor, and Laura Underkuffler for helpful discussions and comments. This Essay benefited greatly from presentation at the 2011 Intellectual Property Scholars Conference held at DePaul University College of Law. An earlier version of this Essay benefited greatly from discussion at the Tri- State Region Intellectual Property Workshop at Fordham University School of Law, January 2011. 1163

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