An Organizational Approach to the Design of Patent Law

6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM
2012] AN ORGANIZATIONAL APPROACH 253
change designed to alter the ease of challenging a patent will
have little effect if there are factors at the first level of analysis
that constrain patent challenges, or if there are factors at the
third level that make enforcement prohibitively expensive. The
interaction between the mechanisms and the availability of
multiple policy levers also suggests the need for policy coordination.
For example, USPTO strategies for changing the relationship
between the agency and patent applicants to encourage
higher quality submissions need to be examined alongside
proposed legislative changes, such as rules governing inequitable
conduct. A formal rule change may have no effect on behavior
if the behavior is controlled by strong norms that point in
the other direction. Second, the relative importance of different
layers for achieving desired changes in economic behavior will
vary depending on the characteristics of the behavior and the
specific institutional context in which it takes place. Changing
risk-taking behavior or beliefs about entrepreneurial ability
may be most heavily influenced by efforts at cognitive change
and a change in norms, whereas increasing the ability of companies
to specialize may be primarily a matter of the interaction
of formal rule change with governance structures. Third,
the policy tools and the opportunities for change vary significantly
by level, with little scope for change at layer one and an
opportunity for rapid and potentially significant change at layer
five. Empirical studies are needed to determine which mechanisms
predominate in different types of economic behaviors
and thus, which policy variables are most likely to be effective.
IV. APPLICATIONS
This Part illustrates how the organizational approach
works as a guide for patent law change through some examples
that highlight areas in which the patent system is underperforming.
A. MAKING PATENT POLICY RELEVANT TO NATIONAL
INNOVATION POLICY
Organizational innovation works in combination with
technological innovation, and as technologies change, so do the
organizations which develop and use these technologies. 186 The
186. Chandler’s work on the emergence of new organizational forms points
to the importance of organizational innovation working in tandem with technological
innovation. See, e.g., ALFRED D. CHANDLER, STRATEGY AND