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FEATURED RESEARCH 2022-2023
by uclawsf
"Rewarding
Failure with Patents"
by Robin Feldman Yale Journal of Health Policy, Law, and Ethics
(Forthcoming)
Patents are not participation trophies Patents are granted on successful inventions, not on attempts that failed. Nevertheless, industry spokespeople and even policymakers often argue that the price of medicine and the return on a patent must compensate for failed research attempts on other drugs. This article argues that the Failure Compensation argument cannot be supported under patent law theory
In addition, from an historical perspective, examining the nation’s early patent statutes and cases reveals that the notion of compensation for failures is entirely absent.
Compensating for failures would also encourage inefficiency and lead to perverse results; the more you fail, the higher the compensation would be when you finally succeed.
