Most would agree that a sound patent system is one in which the social benefits of the system exceed the social costs. Many would also agree that the current patent system imposes significant social costs, and that the current proposed patent reform legislation is largely motivated by a desire to address those costs. In their book, Against Intellectual Monopoly (2008), Boldrin and Levine base their policy recommendation to abolish the patent system on the claim that the social costs of having any patent system, even an “improved” or “reformed” one, will inevitably exceed its benefits. I argue that while Against Intellectual Monopoly falls short of establishing a case for abolishing the patent system, it succeeds in making a case for rethinking the law and economics paradigm of patents that has formed the foundation for much of patent law scholarship and policy. The arguments that Boldrin and Levine offer provide compelling reasons for re-examining the core assumptions underlying the dominant models of how patents impact innovation, paying greater attention to institutional alternatives and to historical lessons about the strength of competitive markets and the costs and benefits of regulatory intervention that dampens competition. I suggest we can meet the challenges highlighted by Boldrin and Levine by providing a more central role for New Institutional Economics (NIE) in the study of patent law, refocusing our analysis on the structure of activities and transactions that drive alternative processes of innovation and the roles that institutions (including but not limited to patent, contract and competition laws, and the informal rules governing collaboration and research activities) and organizations (both public and private) play in determining transactional structures and innovation outcomes.
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