The full text of this Article may be found here.
29 Fordham Intell. Prop. Media &Ent. L.J. 861 (2019).
Article by Richard S. Gruner
echnological innovation outside the United States is increasing. The United States remains the largest single source of new inventions, but the rest of the world produces most technological advances. Yet, even as innovation capacity outside the United States grows, the production of advances remains underincentivized in many developed and developing countries. Weak incentives apply to the outlier advances that are the province of patent laws. These outlier advances—typically reflecting material departures from prior technical knowledge and potentially establishing fundamentally new lines of technological development and consumer products—are particularly important components of technological development. By shortchanging incentives for outlier advances, society hinders the pace and scope of technological advancement.
Talented innovators located outside the United States too often look to home country patent laws for invention rewards and incentives. This results in weak incentives and undesirably low levels of technological innovation regarding the types of outlier advances addressed by patents. This article explains the inadequacy of many home country patent laws to incentivize innovation by inventors working outside the United States. It argues that inventors across the world should look to United States patent laws for their primary invention rewards. Such a strategy will not only spur additional funding and institutional backing for research worldwide, but will increase the likelihood that more outlier technologies will be created to the benefit of parties in the United States and throughout the world.
Richard S. Gruner is the former Director of the Center for Intellectual Property at the John Marshall Law School in Chicago. Professor Gruner is a member of the New York and California state bars and a graduate of the University of California, Irvine (PhD, Criminology, Law and Society 2008), Columbia University School of Law (LL.M. 1982), USC School of Law ( J.D. 1978), and California Institute of Technology (Caltech) (B.S. 1975). He is the co-author (with Shubha Ghosh and Jay Kesan) of TRANSACTIONAL INTELLECTUAL PROPERTY: FROM STARTUPS TO PUBLIC COMPANIES (Carolina Acad. Press 4th ed. 2018) and INTELLECTUAL PROPERTY: PRIVATE RIGHTS, THE PUBLIC INTEREST, AND THE REGULATION OF CREATIVE ACTIVITY (West Acad. Pub. 3d ed. 2016).