36 U. Haw. L. Rev. 1 (2014)
America Invents Act: Promoting Progress or Spurring Secrecy

handle is hein.journals/uhawlr36 and id is 7 raw text is: America Invents Act: Promoting Progress or
Spurring Secrecy?
Diane H. Crawley
In law, as in life, incentives matter.'    Incentives matter because
incentives drive human behavior. The child caught with his hand in the
cookie jar was driven to his fate by the lure of a chocolate chip. Like
cookies, laws create incentives by rewarding certain behaviors and
penalizing others. Likewise, altering incentives, such as by stocking the
cookie jar with sugar free prune cookies or by changing the law, alters
people's behavior because it changes the costs and benefits of making
specific decisions.2 Changes in the law frequently change people's
behavior in unexpected, even unintended ways. Laws have consequences,
and quite often laws have unintended consequences.3 As renowned
economist Frederic Bastiat put it:
[A] law gives birth not only to an effect, but to a series of effects. Of these
effects, the first only is immediate; it manifests itself simultaneously with its
cause-it is seen. The others unfold in succession-they are not seen: it is
well for us if they are foreseen.4
It is indeed well for us if the consequences of a law are foreseen, that we
may evaluate not only the immediate effect, but the series of effects that
may be expected therefrom.
When an inventor invents, she is faced with the choice of whether and
how to protect her innovation.5 In particular, where the invention is capable
of being kept secret while being commercially exploited, an inventor must
choose between secrecy and patent protection.6 If our inventor chooses to
1 JAMES D. GWARTNEY ET AL., COMMON SENSE EcoNoMICs 6 (5th ed. 2005).
2 Id
See, e.g., FREDERIC BASTIAT, THAT WHICH IS SEEN, AND THAT WHICH IS NOT SEEN 23
(Waking Lion Press 2006) (1850) ([I]n fact, the law produced all the consequences
announced ... the only thing was, it produced others which he had not foreseen.).
4  Id. at 1.
Various industries protect their innovation in a variety of ways, including patents,
trade secrecy, lead time and marketing. See Wesley M. Cohen et al., Protecting Their
Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent
(or Not) 1-2 (Nat'l Bureau of Econ. Research, Working Paper No. 7552, 2000), available at
http://www.nber.org/papers/w7552.
6 See Honorable Howard T. Markey, Chief Judge, U.S. Court of Customs and Patent

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