The Battle over Patents

Do patents facilitate or frustrate innovation? Lawyers, economists, and politicians who have staked out strong positions in this debate often attempt to validate their claims by invoking the historical record—but they typically get the history wrong. The purpose of this book is to get the history right by showing that patent systems are the product of contending interests at different points in production chains battling over economic surplus. The larger the potential surplus, the more extreme are the efforts of contending parties, now and in the past, to search out, generate, and exploit any and all sources of friction. Patent systems, as human creations, are therefore necessarily ridden with imperfections; nirvana is not on the menu. The most interesting intellectual issue is not how patent systems are imperfect, but why historically US-style patent systems have come to dominate all other methods of encouraging inventive activity. The answer offered by the essays in this volume is that they create a temporary property right that can be traded in a market, thereby facilitating a productive division of labor and making it possible for firms to transfer technological knowledge to one another by overcoming the free-rider problem. Precisely because the value of a patent does not inhere in the award itself but rather in the market value of the resulting property right, patent systems foster a decentralized ecology of inventors and firms that ceaselessly extends the frontiers of what is economically possible.