The Psychology of Patent Protection

This Article offers the first comprehensive assessment of the major justifications for our patent system using a behavioral psychology framework. Applying insights from the behavioral literature that I argue more accurately account for the realities of human action than previous analytical tools, I critically evaluate each of the major justifications for patents — incentive theory, disclosure theory, prospect theory, commercialization theory, patent racing theory, and non-utilitarian theories. I ask whether our current patent system is an effective regime for meeting the stated goals of these accounts. When the answer to this question is no, I again turn to the behavioral literature to provide suggestions for how we might better achieve these goals. The results of this analysis suggest that our current patent system is best justified under the commercialization account. Surprisingly, my analysis also suggests that many of the behaviors and outcomes we hope to encourage through patents might more effectively be accomplished using less socially costly non-financial incentives