An Organizational Approach to the Design of Patent Law

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272 MINN. J. L. SCI. & TECH. [Vol. 13:1
role in driving innovation, then how patents influence entrepreneurial
activities, the performance of start-up ventures, and
the structure and nature of entrepreneurial markets should be
an area of focus for patent policy-makers. 257 The Berkeley Patent
Survey is one of the few attempts to uncover the broader
relationships between patents and entrepreneurship, exploring
patenting behavior of a large selection of high technology entrepreneurs.
The results suggest that the patterns and drivers
of patent-holding are industry and context-specific, with venture
capital financing as an important variable in differentiating
behavior. 258 Evidence supports the assertion that patents
are used for strategic reasons such as improving bargaining positions
in cross-licensing, as well as signaling reasons such as
securing early stage investment. 259 The cost of obtaining and
enforcing patent rights appears to be a significant variable.
Overall, the results suggest the importance of context in determining
use. 260 The organizational approach provides a way
of integrating the context and connecting empirical findings
such as these to determine how to encourage entrepreneurship
through patent law change.
By starting with the human arrangements that drive alternative
processes of innovation, the organizational approach
acknowledges the importance of human agency in the process
of innovation. It allows for distinctions between different types
of economic behavior at the level of the individual, the organization,
and the market. Where there are actors that seem to
play a particularly important role in driving innovation, the
characteristics of these actors and factors that facilitate or impede
their actions become an important area of policy focus. Fo-
tent?, 23 BERKELEY TECH. L.J. 1063, 1070 (2008); Ted M. Sichelman & Stuart
J.H. Graham, Patenting by Entrepreneurs: An Empirical Study, 17 MICH.
TELECOMM. & TECH. L. REV. 111, 113 (2010).
257. For the importance of entrepreneurs as agents of change, see Douglass
C. North, The Contribution of the New Institutional Economics to an Understanding
of the Transition Problems, in WIDER ANNUAL LECTURES 1, 7 (Mar.
1997), available at http://www.wider.unu.edu/publications/annuallectures/en_GB/AL1.
258. See Stuart J.H. Graham, Robert P. Merges, Pamela Samuelson & Ted
M. Sichelman, High Technology Entrepreneurs and the Patent System: Results
of the 2008 Berkeley Patent Survey, 24 BERKELEY TECH. L.J. 1255, 1326–27
(2009).
259. See Sichelman & Graham, supra note 256, at 112–13 (presenting evidence
as to why innovators patent their new technologies).
260. Id.