Thursday, December 22, 2005

Patents and the prisoner's dilemma

Ghosh writes: While the commonly accepted notion is that patent law protects against various forms of the commons problem as
described by the prisoner's dilemma, a more apt description is that
patent law resolves the problem of what game theorists call the "assurance game." I show how the assurance game better captures the economics, politics, and practices that patent law responds to.

To Ghosh, the analysis is a prisoner's dilemma between inventor and copyer. Ghosh does not evaluate the benefit to the public of public disclosure.

Of the "assurance game":
The main reason that the assurance game serves as a better
description of the underlying problem for patent law is that individuals can assure each other not to imitate. The assurance is called trade secret law. As a hybrid of tort, contract, and property law, trade secret law allows individuals to enter into private arrangements that limit imitation. The existence of such private arrangements calls into question the assumption that imitation is a dominant choice for individuals. If imitation is not a dominant choice, then the prisoner
's dilemma is not an appropriate description of the world. Of course,
that does not mean the assurance game is a perfect description either. The argument, however, is that we should consider alternatives to the prisoner's dilemma and the assurance game is one alternative.

from 18 Can. J.L. & Juris. 307 (2005)


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