In advancing his prospect theory of patents, Edmund Kitch dismissed the possibility of distributing rights to particular inventions through an auction, arguing that the patent system avoids the need for governmental officials to define the boundaries of inventions that have not yet been created. Auctions for patent rights to entire inventive fields, however, might accentuate the benefits of a prospect approach, by allowing for earlier and broader patents. Auction designs that award the patent to the bidder that commits the most money to research and development or that agrees to charge the lowest price, meanwhile, can reduce the costs of prospect approach. Concerns about the government’s ability to decide correctly when to hold auctions, however, provide an uneasy case for patent races over patent auctions. More modest uses of auctions might improve welfare. For example, an auction to a small number of parties of the right to race in a technological field might reduce wasteful duplication and thus accelerate innovation. Similarly, patentees might be allowed to demand auctions for extended patent scope, with the caveat that a patentee would need to substantially outbid others to win such an auction.
Intellectual Property Law
Date of this Version
Michael Abramowicz, "Patent Auctions" (March 22, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1177.