The Law and Economics of IPRs

Abstract

In this chapter, we provide an overview of basic patent, trade secret, copyright, and trademark law, and a general sense of the ways in which courts enforce these rights. Our principal focus will be on U.S. law, although from time to time we will examine other countries' laws and how they sometimes differ from U.S. law. With respect to each of these four bodies of law, we first provide a brief description of the legal rights at issue, and then follow with a discussion of the standard economic justifications for, and challenges to, these rights. Finally, we review the debate over whether intellectual property rights (IPRs) are better protected by property or liability rules. PATENTS AND TRADE SECRETS Inventions and other industrial know-how sometimes may be subject to ownership under patent or trade secret law. Because the same invention may not be protected by both patent and trade secret law, and because patents usually confer a more robust form of protection, an inventor will usually choose patent over trade secret protection when either is available. In this section, we examine the scope of these bodies of law and their suggested economic underpinnings. PATENT LAW To qualify for patent protection, an invention must fall within the scope of patentable subject matter (a machine, process, manufacture, or composition of matter) and must meet the three statutory criteria of novelty, utility, and nonobviousness.