New York University Public Law and Legal Theory Working Papers

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This Article suggests that the historical evolution of physician patenting norms can be understood from a user innovation perspective. User innovator communities often eschew patenting, relying instead on reputation-based reward systems and sharing norms. While virtually all medical innovation was once the province of user innovator physicians, that is no longer the case. The rewards of reputation and use offered by the physician community are insufficient for innovations that require collaboration with outsiders. Patents, on the other hand, are a generally recognized currency for rewarding and governing innovation. I argue that physician patenting norms have evolved to track changes in the role physicians play in particular aspects of medical innovation. The resulting hypothesis that user innovator communities often will find patenting acceptable only when innovation requires collaboration with outsiders applies generally and can be tested in other technological arenas. The user innovator perspective also raises important questions about how patent law should accommodate anti-patenting norms in industries where user innovation is prevalent.

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patent law, user innovation, medical innovation