The central justification offered for patent protection is the need to incentivize technological innovation. Yet to date there is little empirical evidence that this aim is achieved. This Article argues that historical case studies, exploring the impact of patent law on particular fields of technological innovation, can be especially helpful in providing an empirical foundation for patent scholarship. The Article then proceeds to offer one such case study, focused on one of the most important technological revolutions of the past two centuries: electrification. Although Thomas Edison and “the incandescent lamp” have been extensively studied, so far no one has asked what light this lamp can shed on patent law and innovation policy.
This Article develops two primary lessons of this case study. First, the lightbulb is used to test and refine recently articulated theories of “patent racing” as a justification for patent protection. I conclude the racing metaphor captures an important dynamic, but insufficiently accounts for the incremental nature of innovation and the subjectivity involved in judging patent disputes. Edison’s experience suggests the better analogy is the board game Risk! Second, the case illuminates a neglected dimension of patent law: the close relationship between patents and public relations. Edison masterfully manipulated the publicity value of his patents, and leveraged an intensive public relations campaign to influence the interpretation of his patent rights.
In the end, the untold legal history of the lightbulb is a cautionary tale about relying on patents to promote technological innovation. In contrast to the conventional account of patent law as an objective, market-based system for rewarding investments in innovation, this empirical case study reveals a legal system that is messy, manipulable, and fundamentally shaped by myth. Further research on this and other technologies will be necessary to determine whether the case of the lightbulb is a representative or exceptional case and to draw more general conclusions about patent law’s impact of technological innovation. This Article, however, lays out a model for how such research might be approached.The US Commerce Department’s Economics and Statistics Administration and the Us Patent and Trademark Office have meanwhile released Intellectual Property and the U.S. Economy: Industries in Focus, which claims that intellectual property intensive industries support at least 40 million jobs in the US and contribute more than US$5 trillion (34.8%) to the U.S. gross domestic product (GDP).
The 63 page report [PDF] is promoted as the "first of its kind" and showing
that IP-intensive industries have a direct and significant impact on our nation’s economy and the creation of American jobs. When Americans know that their ideas will be protected, they have greater incentive to pursue advances and technologies that help keep us competitive, and our businesses have the confidence they need to hire more workers. ... While IP is used in virtually every segment of the U.S. economy, the report identifies the 75 industries that use patent, copyright, or trademark protections most extensively. These “IP-intensive industries” are the source – directly or indirectly – of 40 million jobs. That’s more than a quarter of all the jobs in this country. Some of the most IP-intensive industries include: Computer and peripheral equipment, audio and video equipment manufacturing, newspaper and book publishers, Pharmaceutical and medicines, Semiconductor and other electronic components, and the Medical equipment space.Findings include -
- IP-intensive industries contributed $5.06 trillion to the U.S. economy or 34.8% of GDP in 2010
- a substantial share of IP-intensive employment was in the 60 trademark-intensive industries, with 22.6 million jobs in 2010. The 26 patent-intensive industries accounted for 3.9 million jobs in 2010, while the 13 copyright-intensive industries provided 5.1 million jobs.
- 40 million jobs, or 27.7% of all jobs, were directly or indirectly attributable to the most IP-intensive industries in 2010
- Due primarily to historic losses in manufacturing jobs, overall employment in IP-intensive industries lagged other industries during the past two decades. While employment in non-IP-intensive industries was 21.7% higher in 2011 than in 1990, overall IP-intensive industry employment grew 2.3% over this same period. Because patent-intensive industries are all in the manufacturing sector, they experienced relatively more employment losses over this period, especially during the past decade. While trademark-intensive industry employment had edged down 2.3% by the end of this period, copyright-intensive industries provided a sizeable employment boost, growing by 46.3% between 1990 and 2011
- Between 2010 and 2011, the economic recovery led to a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.
- Merchandise exports of IP-intensive industries totaled $775 billion in 2010, accounting for 60.7% of total U.S. merchandise exports.
