Home > Journals > LAWREVIEW > Vol. 90 > No. 3 (2016)
The current reward via exclusion framing is deeply problematic. Once we start down that road, where the very purpose is to distort private decision making, we have sealed our fate and we are heading for unresolvable indeterminism. Our inability to prove or disprove the utilitarian balance for such a system was preordained by our framing. With “artificial” inducement as the stated goal, important utilitarian metrics are taken off the table. The price system is not available to measure and justify the patent system because we have purposefully distorted it. It is no wonder that patent controversy has not been resolved and that we are at best still just “muddl[ing] through.”
This Essay takes aim at this inducement framing, and it lays bare its pathologies, explaining that, by inducing invention, we will not be able to make any meaningful assessments of the costs and benefits of the system. There is no doubt that the business of invention and innovation is complex, but by framing patents as inducement we have made that job near impossible.