Ofer Tur-Sinai


This Article challenges this one-dimensional approach and calls for a more frequent use of non-utilitarian considerations in discussions of the patent system. To be sure, this Article does not call for the complete abolition of economic analysis of patent law, which, despite its shortcomings, remains the most important tool in the evaluation of legal rules in this arena, where the vast majority of the players are motivated primarily by economic considerations. However, it does call for a broader use of non-economic considerations, particularly those embedded in the labor theory and the personality theory, alongside the economic analysis. As will be shown in detail below, these non-utilitarian justifications for property rights are, to a great extent, applicable to rights in inventions...This Article argues that an examination of patent law under the framework of these non-utilitarian theories may offer significant guidance for policymakers in certain instances where the economic analysis does not point to a definitive solution. Furthermore, according such theories greater weight in the analysis of patent law may ultimately result in a patent system that not only serves its prescribed economic goals, but also promotes other important goals, such as providing just reward for labor and enabling individuals to develop their personality...Part II provides the necessary background with respect to the economic analysis of patent law in general and the economic analysis of cumulative innovation in particular. Part II also highlights the shortcomings of such analyses. Parts III and IV present the theories at the center of this Article—the labor theory and the personality theory, respectively—and analyze the case of cumulative innovation in light of each of these theories. Part V concludes with a summary and specific recommendations, including proposals to adopt a wide experimental use exception, to include the exploitation of follow-on inventions within the scope of the original patent, and to apply liability rules in case the inventors fail to reach a voluntary agreement allowing such exploitation.