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13 Colum. Sci. & Tech. L. Rev. 1 (2011-2012)

handle is hein.journals/cstlr13 and id is 1 raw text is: DISPELLING THE MYTH OF PATENTS THE COLUMBIA SCIENCE & TECHNOLOGY LAW REVIEW VOL. XIII STLR.ORG FALL 2011 ARTICLE DISPELLING THE MYTH OF PATENTS AS NON- RIVALROUS PROPERTY: PATENTS AS TOOLS FOR ALLOCATING SCARCE LABOR AND RESOURCEST Richard S. Gruner' The view of patents as non-rivalrous property i fundamentally flawed in a key respect that has been largely overlooked in the legal lit- erature. 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, laige-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, estab- lishing a basis to compare the relative value of commitments of resources among innovation protects. As innovation projects assume ever larger and more central func- tions 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 rectif this imbalance and highlight the important t This Article may be cited as http://www.stlr.org/cite.cgi? volume= 13&article= 1. This work is made available under the Creative Com- mons Attribution-Non-Commercial-No Derivative Works 3.0 License. 1. Professor of Law; Director, Center for Intellectual Property Law, John Marshall Law School. The author would like to thank Joshua D. Sarnoff and David L. Schwartz for thoughtful comments on earlier drafts of this Article and Erin M. McKibben for research assistance in connection with this Article. 2011] 1

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