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Home > Journals > Michigan Law Review > MLR > Volume 98 > Issue 4 (2000)

 

Abstract

The race model has been the darling of patent economists and game theorists. This model assumes that the winner, namely the first to invent, takes the patent grant with the market dominance that comes with it, whereas the second comer, in the best tradition of sports contests, obligingly accepts her loss and quietly vanishes from the scene. While the sports analogy has provided a useful framework for understanding the economics of invention, it has obfuscated an important aspect of the inventive process: the possibility of strategic publication of research findings in order to prevent the issuance of a patent to a competitor. Captured by the sports analogy, patent scholars have consistently presupposed that the loser of a patent race must behave in a sportsmanlike fashion and gracefully accept her fate. But there is no reason whatsoever why competition in the inventive field should conform to the rules of sports. The stakes and payoff matrices of patent races are considerably different from those of sports contests, and, thus, it is only natural to expect firms in a patent race to deviate from the norms of fair competition in sports. The nature of patent races is much more complex than that of other races. Ceding a patent to a competitor may often spell a substantial drop in revenues for the losing firm, and in some cases may even drive the loser out of the market. Therefore, trying to win the race may not always be the profit-maximizing strategy. Rather, in many patent races the superior strategy for one or more of the competing firms would be to prevent other firms from winning the race by publishing their research findings. Recharacterizing patent races in this way implies that firms that are about to lose in a patent race often face a dilemma all too familiar to academics, the choice of "publish or perish."

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