An Organizational Approach to the Design of Patent Law

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2012] AN ORGANIZATIONAL APPROACH 273
cusing on cognition provides a useful context for exploring the
characteristics, motivations, and decision-making of the entrepreneur,
with implications for how patents might influence behavior.
261 There is at least anecdotal evidence that patents
could have an empowerment function. 262 The notion that one
can “own” their own ideas and create valuable assets out of
their own intellectual efforts can encourage individuals to pursue
their initiatives in a business world that they might otherwise
feel was inaccessible. There is both a psychological component
and a practical business component to the notion of
intellectual property as property that can be self-created, with
limited external resources. At the broader social level, cultural
and social understanding about patents and intellectual property
ownership more generally could create a climate conducive
to entrepreneurship, just as the bankruptcy laws and the acceptability
of failure has been thought to contribute to the willingness
to engage in risky new ventures. 263 General norms
about risk taking and historical practices of investment might
be influenced by patent policies, influencing at least the financing
of entrepreneurial activities. The different psychologies of
creativity and scientific or technical invention may also justify
differences in formal rules. 264 Recognizing the interaction between
informal rules and formal rules, the organizational approach
captures the potential of entrepreneurial acts and beliefs
to shape the direction of innovation and influence the roles
that patents may play in innovation processes. 265
261. See, e.g., Shyamkrishna Balganesh, Foreseeability and Copyright Incentives,
122 HARV. L. REV. 1569 (2009); Jonathan Remy Nash & Staphanie M.
Stern, Property Frames, 87 WASH. U. L. REV. 449 (2010); Jennifer W. Scangos,
Comment, Instinct and Rationality: An Evolutionary Approach to Intellectual
Property Law, 15 INTELL. PROP. L. BULL. 65 (2010).
262. For anecdotal evidence, see the life and work of National Foundation
for Teaching Entrepreneurship founder Steve Mariotti. But see Torrance &
Tomlinson, supra note 143, at 135.
263. See generally Mike W. Peng, Yasuhiro Yamakawa, & Seung-Hyun
Lee, Bankruptcy Laws and Entrepreneur-Friendliness, 34 ENTREPRENEURSHIP
THEORY AND PRACTICE 517 (2009).
264. See Jeanne C. Fromer, A Psychology of Intellectual Property, 104 NW.
U. L. REV. 1441, 1443 (2010) (examining patent laws and copyright laws in
light of psychology literature on creativity and different aspects of the creative
processes for different works and inventions).
265. See, e.g., Sarah Kaplan & Fiona Murray, Entrepreneurship and the
Construction of Value in Biotechnology, 29 RES. IN THE SOCIOLOGY OF ORG.
107, 107–8 (2010) (“[T]he burgeoning literature on institutional entrepreneurship
. . . argues precisely that neither the technology nor the institutional environment
is fixed and that multiple actors with multiple goals . . . act to