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 259
nities for more refined strategies should be explored. 209 These
strategies need to encompass evolving innovation paradigms
and the multi-faceted nature of innovative activity. 210 They
need to respond to multiple innovative communities, including
commercial firms, scientific researchers, user innovator communities,
and open source proponents. 211
I suggest that disagreement persists about the type and
level of tailoring of patent law that should occur in part because
explanations of how patents change innovation are inadequate.
By targeting the organization of innovation as the focus of patent
policy, the organizational approach offers a coherent
framework for examining ways in which patent law should be
tailored to fit different contexts. 212 A central premise of the organizational
approach is that patent law should be designed in
light of and be tailored to the distinct needs of alternative innovation
processes. Selection among alternative approaches
should be informed by factors such as information asymmetries,
the nature and specificity of investments required, the
importance of informal rules in shaping relationships among
participants, and the structure of the markets within which
such activities take place. Moreover, patent law needs to be responsive
and adaptable to emerging modes of innovation. In
some cases, such as the evolution of standard setting organizations
to address the coordination needs of related technologies,
this may mean limiting regulation to provide greater opportunities
for private ordering, but with some protection against
209. Carroll, for example, advocates a pragmatic, evidence-based economics
approach to tailoring measures, which takes into account information costs
relating to who can pick the winning technologies and the cost and political
feasibility of tailoring measures. See Michael W. Carroll, One Size Does Not Fit
All: A Framework for Tailoring Intellectual Property Rights, 70 OHIO ST. L.J.
1361, 1410–1414 (2009) (advocating for a pragmatic, evidence-based economics
approach as basis for selecting among tailoring policies. Factors include questions
of who has the best information, costs of administering the system, and
considerations of political economy).
210. While innovation and economic growth are sometimes referred to almost
interchangeably as desired outcomes of the patent system, for example,
innovation is only one factor in economic growth and does not always result in
what we might think of as economic growth. There may also be non-economic
objectives or values to address, such as issues of equity and a transformational
impact of certain kinds of property rights, which need to be captured in the
analysis of patent policy.
211. Strandburg, supra note 44, at 867.
212. See, e.g., Burk & Lemley, supra note 22, at 1578.