Schmidt, Claudia --- "Comment: Some Economic Considerations Regarding Optimal Intellectual Property Protection" [2011] ELECD 446; 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 4

Section Title: Comment: Some Economic Considerations Regarding Optimal Intellectual Property Protection

Author(s): Schmidt, Claudia

Number of pages: 7

Extract:

4. Comment: some economic
considerations regarding optimal
intellectual property protection
Claudia Schmidt*

1. INTRODUCTION

Since the landmark articles of Fritz Machlup1 and Edith Penrose,2 eco-
nomic scholars and researchers have put a lot of effort into further illumi-
nating and deepening the economic analysis of the social value of patents.
However, although a lot of research has been undertaken, lawyers and
legal scholars often complain that no significant advancements have been
made in the literature. According to these complaints, although in some
cases economics proves positive for the patent system, both empirical
and theoretical results in economic theory on (overall) social benefits are
indecisive: On the one hand we can assume that patent incentives attract
resources to the production of patentable inventions, that is, patents offer
incentives to innovators. At the same time, we cannot be sure that society
will be better off because of the patents. In other words, critics of the
economic theory of patents argue that the results are rather inconclusive.3
I strongly disagree with this conclusion. The results of economic works
are not necessarily inconclusive; rather it is not possible to make an overall
assessment of the intellectual property system in general or the patent
system in detail. Instead, economic results show an inevitable differen-
tiation. In certain cases and to a certain extent, patents are not necessary
to promote innovation, that is, to appropriate the returns of research



* Research Assistant, Chair of Economic Policy, Philipps University of
Marburg, Germany.
1 Machlup, Fritz (1958), ...