Patent as Credentials

By Jason Rantanen

I’ve been taking a break from blogging for the past few months to focus on teaching, research and service at the University of Iowa.  That’s allowed me to experience new aspects of technological innovation and patent law, particularly in the context of a research university.  It’s also allowed me to work on a couple of projects that are finally coming to fruition.

The first is described below.  It’s a concept that will likely feel familiar to most patent practitioners. I’ve just articulated the inchoate idea and given it structure to allow it to be weighed and debated more easily. Virtually every person connected with patent law that I’ve shown the paper to has had examples and stories of their own, some of which I’ve added. At the onset I want to make clear that while I think that the credentialing function of patents has merit on balance, in individual situations it can have substantial negative effects.

Here’s the abstract:

The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology. People are drawn to file for patents because that is how these economic rewards are secured. While scholars have proposed variations on the basic exclusionary mechanism, and a few have explored alternate reasons why businesses seek patents, the question of whether individuals—human beings—seek patents for reasons other than the conventional economic incentive remains unexplored. As Jessica Silbey recently observed, human creativity is motivated by more than just the potential for immediate economic returns. But an individual’s motivation to create does not explain why that person would go through the trouble and expense of obtaining a patent absent the promise of economic gain.

We offer an explanation for why individuals may seek patents beyond the promise of supracompetitive pricing: patents serve as credentials. Simply put, some human beings want to be recognized by society as inventors. But claiming to be an inventor without evidence is unlikely to persuade the masses—or perhaps even friends. Patents serve as powerful evidence that an individual meets the societal definition of “inventor.” Just as a doctoral degree in history might indicate that one is an intellectual, obtaining a patent shows that the person named on its face is a real-life, government-certified inventor. Regardless of whether a particular patent conveys an economically valuable mechanism of exclusion, the inventorship recognition alone may motivate some individuals to seek patents.

Links to the draft article are here:

SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3013780

SocArXiv:  https://osf.io/edumf/