The Emergence of the Innovative Entity: Is the Patent System Left Behind?, 16 J. Marshall Rev. Intell. Prop. L. 66 (2016)

This article is concerned with the question of whether the United States patent system achieves its goal, set by policymakers, to promote innovation. The article provides a systematic review of two bodies of literature and how each of them perceives the process and identity of the innovator. First, a review of the development of U.S. patent system, from pre-legislation England to the U.S. federal system, alongside the developments of the classical reasoning for property rights allocation, revealing that as the Anglo-American patent system is rooted in the privileges system, it views innovation as the creation of an individual inventor. Second, a review of the “evolution” of innovation production theories, and how their focus has shifted from the individual innovator to the sole firm, focusing these days on cross-organizational collaborations as an innovation generator. The review revels a gap between how innovation is actually produced and how it is viewed by the Patent Act. This lack of congruence raises concerns regarding the ability of the Patent Act to fulfill its goal to foster innovation and provide the appropriate incentives to that end. The article asserts policymakers should view innovation as the result of an intellectual effort by an ‘innovative entity,’ as oppose to a single inventor. The article analyzes where the Patent Act falls short of incentivizing the establishment of such innovative entity, discussing in detail the sections regulating inventorship and ownership and the Act\u27s libertarian property regime. Following a conclusion that current U.S. Patent Act does not provide sufficient incentives required for the initiation of cross-organizational research and development (R&D) collaboration and the establishment of the innovative entity, it calls policymakers to address these issues. This is in order to ascertain the Act\u27s ability to promote innovation and provide signals to actors operating in the innovation ecosystem that cross-organizational R&D collaborations are desired