An Organizational Approach to the Design of Patent Law

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6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM 276 MINN. J. L. SCI. & TECH. [Vol. 13:1 tent literature. Studies of the academic-firm interface offer important insights into roles that patents might play in science-based entrepreneurship. The role of academic scientists in the process of creating and growing new ventures is particularly significant in the life sciences, where much of the basic research underlying drug discovery and development is conducted in universities and other non-profit research labs. They participate in venture creation and development through consulting, sponsored research, and other forms of collaboration that can involve transfer of both human and social capital. 273 Patents offer mechanisms for structuring collaborations that might otherwise be unavailable, but in allocating ownership and control over the fruits of collaboration they might also foreclose certain types of research and collaborative activity. Despite the importance of these activities, the effects of science-based entrepreneurship and, in particular, the roles of patents in promoting it, on the conduct of academic science have yet to be fully understood. 274 Policy implications uncovered by an organizational approach include tailoring of patent policy to include broader research use exemptions to distinguish between applied and basic research. 275 CONCLUSION Truly among man’s innovations, the use of organization to accomplish his ends is among both his greatest and his earliest. 276 In 2009 President Obama announced a new “Strategy for Innovation” designed to “lay the foundation for the innovation 273. See, e.g., Fiona Murray, The Role of Academic Inventors in Entrepreneurial Firms: Sharing the Laboratory Life, 33 RES. POL. 643, 644 (2004) (examining the extent and mechanisms through which academic scientists contribute not only human capital but also social capital to entrepreneurial firms). 274. Cf. Mark Edwards, Fiona Murray & Robert Yu, Gold in the Ivory Tower: Equity Rewards of Outlicensing, 24 NATURE BIOTECH. 509, 515 (2006) (“[T]he impact of startup involvement on scientific competition, the behavior of academic scientists and the diffusion of publicly funded science to a wide audience has yet to be fully unraveled.”). 275. See generally Merges, supra note 41 (proposing broader research use exemption). 276. KENNETH J. ARROW, ESSAYS IN THE THEORY OF RISK-BEARING 224 (1971).
6 VERTINSKY FINAL_JAD (DO NOT DELETE) 2/27/2012 2:20 PM 2012] AN ORGANIZATIONAL APPROACH 277 economy of the future,” and updated it in February 2011 to build on key aspects of the strategy. 277 The policy calls for strengthening competitive markets through regulatory reform and a rethinking of the relationship between public and private sectors, for government intervention in key sectors where “markets may fail on their own,” and for increased investment in the basic infrastructure underlying systems of innovation. 278 A key theme in the national innovation policy is the importance of collaboration and the need to foster new and improved regional and local systems of innovation. 279 The America COMPETES Act, passed in 2007 and reauthorized in 2011, emphasizes the use of organizational strategies to support innovation. These strategies include fostering new kinds of collaboration, particularly public-private collaborations such as those between universities, government labs, and firms, and supporting new forms of economic organization, such as the creation of regional innovation clusters. 280 Although the patent system was created for the purpose of encouraging innovation, patent policy is marginalized in current national innovation strategies. This paper provides a way of answering this puzzle and, more importantly, a way of making patent policy more relevant to innovation policy. I have argued that the neglect of patents as important tools in furthering the goals of national innovation strategies can be explained at least in part by the focus of traditional approaches to patent policy on incentives to invent rather than efforts to support innovation systems. 277. NAT’L ECON. COUNCIL, supra note 3, at i; see also A Strategy for American Innovation: Securing Our Growth and Prosperity, WHITE HOUSE (Feb. 2011), http://www.whitehouse.gov/innovation/strategy. 278. NAT’L ECON. COUNCIL, supra note 2, at ii (introducing a national innovation strategy built around government investment in key areas of innovation and in the infrastructure and other “inputs” of innovation and promotion of competitive markets to produce the innovations needed, and advocating for government intervention to support market production). 279. Id. at 19. 280. America COMPETES Reauthorization Act of 2010, H.R. 5116, 111th Cong. (2010) (investing in innovation through R&D and improving American competitiveness); see, e.g. Robert D. Atkinson, Eight Ideas for Improving the America COMPETES Act, INFO. TECH. & INNOVATION FOUND., March 2010, at 1, available at http://www.itif.org/files/2010-america-competes.pdf; Fred Block & Matthew R. Keller, Where Do Innovations come From? Transformations in the U.S. National Innovation System, 1970-2006, INFO. TECH. & INNOVATION FOUND., July 2008, at 1, available at http://www.itif.org/files/ Where_do_innovations_come_from.pdf (documenting the importance of collaborations between universities, federal labs, small firms, and large firms as drivers of innovation).
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An Organizational Approach to the Design of Patent Law

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