Peritz, Rudolph J.R. --- "Patents and Progress: The Economics of Patent Monopoly and Free Access: Where Do We Go From Here?" [2011] ELECD 445; in Kur, Annette; Mizaras, Vytautas (eds), "The Structure of Intellectual Property Law" (Edward Elgar Publishing, 2011)

Book Title: The Structure of Intellectual Property Law

Editor(s): Kur, Annette; Mizaras, Vytautas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448766

Section: Chapter 3

Section Title: Patents and Progress: The Economics of Patent Monopoly and Free Access: Where Do We Go From Here?

Author(s): Peritz, Rudolph J.R.

Number of pages: 9

Extract:

3. Patents and progress: the economics
of patent monopoly and free access:
where do we go from here?
Rudolph J.R. Peritz*

Some chapters in this collection discuss the grounds for protecting intel-
lectual property rights. This chapter is one of several that investigate the
other side ­ the public domain and free access. It takes an economic per-
spective, taking as its point of departure a landmark article about patents
written in 1950 by two economists, Fritz Machlup and Edith Penrose.
Questions about the public domain and free access span the entire array
of intellectual property rights ­ from patent to copyright to trademark,
and beyond. For advocates of free access, patents present a more diffi-
cult policy problem than copyright and trademark, in my view, because
patents do not have an obvious free expression connection or cultural
component to invite open access. Both copyright and trademark have
fair use defenses that, in the US, stand shoulder to shoulder with freedom
of expression and a socio-political marketplace of ideas. US patent law
has no fair use defense and its experimental use defense is only a mirage.
Patent's marketplace of ideas stands in the shadow of commercial markets
for goods and services, and for technology transfer.
That is not to say there is no overlap or common ground; perhaps
the most interesting and challenging overlap involves computer soft-
ware, although, even there, inventors look more like authors of textual
invention.
In any event, patent scholarship, if not patent protection, has ...