Friday, October 13, 2006

Peanut Butter patents?

I came across an article entitled "Peanut Butter Patents vs. the New Economy," authored by Paroma Sanyal and Adam Jaffe (Jaffe of Innovation and its Discontents). It didn't seem to cite Quillen and Webster.


Blogger Lawrence B. Ebert said...

IPBiz could not find evidence that the Sanyal/Jaffe paper was published in a journal. HOWEVER, for those who like footnotes, the draft is cited in a footnote:

Joshua D. Sarnoff, Abolishing the Doctrine of Equivalents and Claiming the Future After Festo,
19 Berkeley Tech. L.J. 1157

n189. See, e.g., John R. Allison & Mark A. Lemley, The Growing Complexity of the United States Patent System, 82 B.U. L. Rev. 77, 141 (2002) ("The scholarly effort to explain what drives innovation has been long and complex."); Scotchmer, supra note 83, at 37 ("There are no simple conclusions to draw about optimal breadth of patents."); Paroma Sanyal & Adam B. Jaffe, Peanut Butter Patents Versus the New Economy: Does the Increased Rate of Patenting Signal More Invention or Just Lower Standards?, at 7 (April 2004), available at (discussing factors that affect invention rate, including research and development expenditures, "income, education, government quality and the legal environment of a country," as well as intellectual property regimes). Most of the existing studies and theoretical models analyze and find heterogeneity in approaches to protecting innovation or patenting behaviors, rather than isolate the effects of patents on sequential innovation. See, e.g., Allison & Lemley, supra, at 81-87 (surveying the literature); John R. Allison et al., Valuable Patents, 92 Geo. L.J. 435, 438-39 (2004) (noting characteristics of litigated patents). The converse of heterogeneity in innovation is heterogeneity in the costs of patents to sequential innovation. Cf. Lunney, supra note 163, at 42-46 (noting that the desirability of expanded protection requires balancing additional induced creative output with reduced abilities to exploit "the nonrivalrous character of the preexisting products," that perfect information and costlessly enforceable legal rules do not exist to allow the balance to be set for each innovative product, and that uniform protection may prevent maximizing social welfare). Patent rules also change over time, which may further affect the scope of foregone innovation. See Gans & King, supra note 173, at 2-4, 11-14 (discussing how patent scope and duration may have different impacts on the timing of innovative activities).

Of footnotes, there is a strange footnote 8 on page 8 of the Sanyal/Jaffe draft to a 1963 paper by Mansfield, discussing a so-called patent dominance of 4 firms in the petroleum and bituminous coal area in the years 1919 to 1958.

Edwin Mansfield is more known for Patents and Innovation: An Empirical Study, 32 Mgmt. Sci. 173 (1986):


Note 3. Edwin Mansfield, Patents and Innovation: An Empirical Study, 32 Mgmt. Sci. 173 (1986) (examining evidence that firms in many industries would not change research and development ("R&D") strategies in the absence of patent protection)

Michael A. Carrier, 54 Duke L.J. 1

A survey of R&D executives revealed that, within a two-year period, 100 percent of inventions in the office equipment, motor vehicles, rubber products, and textiles industries, and 99 percent in the primary metals and instruments industries, would have been developed even without patent protection. Mansfield, supra note 153, at 174-75 & tbl.1.

Dan L. Burk & Mark A. Lemley, 89 Va. L. Rev. 1575

n25. Innovators who are first to market often enjoy substantial advantages over later imitators even when access is not physically, electronically, or legally restricted. This first mover advantage is not premised on any direct effort to restrict access to proprietary information; it results from practical limitations on access and delays associated with incomplete knowledge. Empirical data shows that such first mover advantages function as innovation incentives. For example, one study of large corporations in various industries concluded that head start advantages, including the establishment of production and distribution facilities, were more effective than the use of patents in enabling firms to reap returns from innovation. Levin et al., supra note 22, at 815-16 (concluding that the patent system and related institutions "improve the appropriability of returns from innovation," but "are not the only nor necessarily the primary barriers that prevent general access to what would otherwise be pure public goods"). See also Edwin Mansfield, Patents and Innovation: An Empirical Study, 32 Mgmt. Sci. 173, 176-77 (1986) (examining the extent to which various firms and industries rely on the patent system to protect their innovations). In fact, Nancy Dorfman argues that the first mover advantage has been the primary reason for innovation in the computer hardware and semiconductor industries. See Nancy S. Dorfman, Innovation and Market Structure: Lessons from the Computer and Semiconductor Industries 235-39 (1987).

9:48 AM  

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