Less Protection, More Innovation?

Murat C. Mungan

Supreme Court Economic Review, 2015, vol. 22, issue 1, 123 - 146

Abstract: Reward theory, which represents the conventional economic view, suggests that the optimal strength of patents depends on a use-creation trade-off; the inevitable production of dead-weight losses in the ex post market for the invention for the purpose of fostering technological progress. This paper demonstrates a caveat in this approach by using game theory. Strong patents increase the value of becoming an inventor. Therefore, more firms are attracted to R&D. However, each firm rationally discounts the probability that it will be the first to obtain a patent, and may therefore reduce or abandon its R&D investment. This leads to a lower invention probability per R&D firm, which in turn may lead to a lower aggregate invention probability. In such cases, weaker patent protections can simultaneously foster innovation and eliminate dead-weight losses in the ex post market for the invention. Hence, contrary to the conventional view, the use-creation trade-off does not exist globally.

Date: 2015
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