User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them. Moreover, user innovators often benefit from "freely revealing" their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity. This picture of user innovation contrasts sharply with the seller innovator picture which dominates patent policy. In that picture, incentives for inventing, disclosing, and disseminating new technologies arise from the potential for recouping innovative investments through commercial sales. Because user innovators have different incentives, we should consider modifying patent doctrine so as to avoid the social costs of unnecessarily broad protection in contexts in which user innovation predominates. This Article lays out a framework for thinking about patent doctrine in the context of user innovation. It then explores one context in which user innovation plays a significant role-the development of inventions that can be used as research tools. Considering the specific incentives to invent, disclose, and disseminate research tools of different classes of research tool inventors leads to a proposal for a blanket exemption from infringement liability for research use. The Article also proposes an alternative, more modest, "double-edged sword" exemption, which would excuse noncommercial research use of all patented inventions and all research use of inventions made by non-profit inventors.
Katherine J. Strandburg,
Users as Innovators: Implications for Patent Doctrine,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol79/iss2/4