Independent-Invention Defense in Intellectual Property, The

Intellectual Property

Article Snapshot


Stephen M. Maurer and Suzanne Scotchmer


Economica, Vol. 69, pp. 535-547, 2002


This paper looks at how patent law could be changed to allow more competition.

Policy Relevance

Consumers would benefit from lower prices if patent law allowed anyone who invents a product to compete to sell it.

Main Points

  • Copyright law and trade secret law give the creator of an idea the right to use it, but if someone else comes up with the same idea independently, without copying the original, he is allowed to use it too.

  • But patent law does not allow independent inventors to market their ideas. Patent law should be changed to allow this.

  • After the patent has been issued, allowing independent invention will allow the first patent owner to recover what he has spent on research and development, but will stop him from gaining a monopoly.

  • In the race leading up to the patent, allowing independent invention will reduce wasteful duplication of research. Fewer firms will enter the race, knowing that there are more potential competitors.

  • The patent owner will offer a license to reduce the risk of independent invention. Thus, independent invention will be rare.

  • Sometimes, a firm could get an unfair advantage from watching its competitors to observe which products succeeded before researching and developing the same product independently. This should not be allowed.

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