Users as Innovators: Implications for Patent Doctrine

Abstract

User innovators develop technology in order to use, rather than sell, it. Users of products and services - both firms and individual consumers - are increasingly able to innovate for themselves. The benefits user innovators derive from developing and using their inventions provide sufficient compensation to motivate them to invest the effort necessary to invent them. 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. Under current law, user innovators may, and sometimes do, choose to protect their inventions by trade secrecy or patenting, but these legal protections are not central to motivating their inventive activity. User innovators often benefit from freely revealing their innovations to others. This picture of user innovation is in sharp contrast to the picture that dominates discussions of patent policy, which have for the most part remained rooted in the paradigm of commercial sale. In the standard analysis, incentives for inventing, disclosing, and disseminating new technologies arise from the potential for recouping innovative investments through commercial sales. Because of the potential for free riding by competitors when an invention is sold, the argument goes, patents are needed to maintain socially optimal levels of innovation. User innovation challenges this picture because user innovators do not need the prospect of sales to motivate them to invent. If we can identify contexts in which user innovations would be produced, disclosed, and disseminated despite limitations on patent protection, we may be able to modify patent doctrine so as to avoid the social costs of unnecessarily broad protection. 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.