Document Type


Publication Date

Summer 2013




Intellectual Property Law


There is a growing, inescapable sense that something has gone terribly wrong with the patent system. The patent system is described as a failure, broken, and dysfunctional. Yet, despite the fact that much of today’s headline-grabbing patent activity appears facially unproductive, we really can’t be sure that the system has failed in its mission. Current patent theory is so indeterminate that it is hard to decisively criticize these activities. In fact, the current narrative cannot conclusively show that patent trolls or any other patent-related activities are or are not economically justified. Though depressing and perhaps embarrassing, this patent indeterminacy is not really a surprise; it’s been this way for two hundred years. We continue to use the standard narrative because we don’t think we have anything better.

But we need stronger, more determinate backing for the patent system. This article develops an alternative narrative that can justify at least part of the current system. In that narrative, the patent system provides not special inducement as in the current narrative, but rather it provides the underlying legal support for a voluntary market exchange of inventions. The article shows that, even though market exchange of technological ideas or information generally might be problematic, market exchange of inventions is different. Amid all of the current controversy, this new narrative aims to establish an island, perhaps a small one, of economically justified activity that can serve as a normative core for a patent system that we can finally confidently believe in.

Publication Citation

Published in: Brooklyn Law Review, Vol. 78, No. 4 (Summer 2013).