The case for a liability rule to stimulate investment in sub-patentable innovation

Abstract

The global intellectual property law system rests largely on a distinction between exclusive property rights and free competition. The prevailing use of exclusive rights as the backbone of intellectual property law has overshadowed the possibility of alternative approaches that may better reflect the needs of contemporary innovation policy. Professor Rochelle Cooper Dreyfuss has long been a trailblazer in this area, constantly exploring news ways of fine-tuning existing intellectual property regimes. Inspired by her career-spanning questioning of the balance between current embodiments of intellectual property standards and sound innovation policy, we outline here a proposal for the creation of an alternative legal regime - one based on the use of liability rules in place of exclusive rights that would carve out an intermediate system of protection for sub-patentable innovation.