Users as Innovators: Implications for Patent Doctrine

Intellectual Property and Patents

Article Snapshot


Katherine Strandburg


University of Colorado Law Review, Vol. 79, No. 2, 2008


Proposes modification of patent doctrine to integrate non-sales motivations for innovators who use their own inventions.

Policy Relevance

By identifying contexts in which user innovations would be produced, disclosed, and disseminated despite limitations on patentability, modifications to patent doctrine can be proposed so as to avoid the social costs of unnecessarily broad patent protection.

Main Points

  • Patents impose costs on consumers of the patented good and on next-generation innovators, who must pay higher prices, negotiate licenses, and obtain authorization from the patent holder before using patented inventions. In the standard analysis, these costs are justified by the need to create incentives for inventing, disclosing, and disseminating new technologies. A patent provides these incentives by allowing the innovator to recoup investments in developing innovations through commercial sales.
  • Many important innovations are developed by user innovators who are motivated to develop technology for their own use, rather than to sell it. Moreover, user innovators often “freely reveal” their innovations to others because of private benefits they are able to obtain as a result. In general, patent protection is less necessary and more costly for user innovations than for seller innovations. It is worth considering, therefore, whether patent doctrine should be modified in these cases.
  • Depending on the prevalence and character of user innovation in a particular area of innovation, optimal doctrinal adaptations may vary from a complete ban on patenting certain types of inventions to more subtle adaptations, such as providing exceptions from liability for infringement in some circumstances.
  • To determine the appropriate doctrinal adaptation in a particular context, one should:

    • Identify groups of user and seller innovators and consider how closely the user innovators approximate the “ideal” user innovator who is able to recoup his or her investment from use alone.
    • Evaluate the extent to which relevant inventions are observable while they are being used (“self-disclosing”) or can be used in secret (“non-self-disclosing”).
    • Use this categorization to analyze each group's incentives to invent, disclose, and disseminate each type of invention with and without patent protection.
  • Applying this framework to the research context, where researchers are known to invent many tools for use in their own research, supports a broad exemption from patent infringement liability for all research use (but not sales) of patented inventions.

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