The Danger of Underdeveloped Patent Prospects

58 Pages Posted: 21 Jun 2013

See all articles by Michael Abramowicz

Michael Abramowicz

George Washington University Law School

Date Written: 2007

Abstract

Commentators have long recognized that much of the work of commercializing an invention occurs after a patent issues. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short such that a patentee will not develop an invention to the extent that the patentee would if more patent term remained. This concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early in the invention process. While the patent system reduces this risk by requiring a substantial degree of achievement before patenting, underdevelopment may still be a problem for some inventions, and in particular, in the field of genomics. A possible solution is a system of patent extension auctions under which a patentee would always be allowed to request such an auction, but could win it only by substantially outbidding third parties. Under such a system, patentees would call for auctions only when the benefits of ownership continuity, and thus of continued patent development, are relatively high.

Keywords: patents, inventions, development, underdevelopment, commercialization, patent term, patent prospect theory, genomics, patent extension, auctions

JEL Classification: D42, K39, K29, O31, O34

Suggested Citation

Abramowicz, Michael, The Danger of Underdeveloped Patent Prospects (2007). Cornell Law Review, Vol. 92, No. 6, 2007, GWU Legal Studies Research Paper No. 2013-90, GWU Law School Public Law Research Paper No. 2013-90, Available at SSRN: https://ssrn.com/abstract=2282633

Michael Abramowicz (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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