Incentivizing the Ordinary User
2015; Fredric G. Levin College of Law; Volume: 66; Issue: 3 Linguagem: Inglês
ISSN
1045-4241
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoDisputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate and looks instead at the players regulated by the patent system. This Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors but largely ignores a crucial player: the ordinary user. The user, in his everyday decisions of whether to adopt a technology, plays a critical role in determining whether a new technology will be disseminated. Yet patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated only by price and availability. This Article uncovers the intricacy of ordinary users’ technological adoption decisions. It identifies two principle factors that influence user resistance to new technology: novelty and perceived consequences. Many believe that the market rule should govern the adoption process of new technologies, that is, the market should decide which technologies society adopts. Yet this rule fails to recognize the variety of factors that influence the ordinary user. This Article proposes that while government action to encourage user adoption should not be the norm, government action that gently nudges the user could prove particularly effective in cases of market failures. In conclusion, this Article suggests two instances in which government action is particularly warranted: first, when market failure occurs because a technology is dependent on network effects and the accumulation of a critical mass of users; second, when there is a critical need to disseminate a technology quickly. ∗ Professor of Law, Seton Hall University School of Law. I am very grateful to Yochai Benkler, Rochelle Dreyfuss, Brett Frischmann, Jeanne Fromer, Marina Lao, Erik Lillquist, Florencia Marotta Wurgler, Jason Mazzone, Jordan Paradise, Frank Pasquale, David Opderbeck, Guy Pessach, Bhaven Sampat, Joshua Sarnoff, Amit Solomon, Katherine Strandburg, Charles Sullivan, and Jonathan Zittrain for their helpful conversations and suggestions. I would also like to thank the participants of the following forums for their feedback: IPSC 2011, PATCon2, University of Virginia Faculty Workshop, 2nd Annual Tri-State Intellectual Property Workshop at Fordham Law School, Fordham Intellectual Property Law Journal Symposium, Research Seminar at the New York University School of Law, Patent Law Seminar at Depaul University College of Law, Pace Law School Faculty Workshop, Hofstra Law School Faculty Workshop, and Brooklyn Law School Intellectual Property Colloquium. For their invaluable research assistance, I would like to thank Lauren Bolcar, Laura Green, Meredith Traina, Peter Slocum, and Eric Suggs. 1 Bernstein: Incentivizing the Ordinary User Published by UF Law Scholarship Repository, 2015 1276 FLORIDA LAW REVIEW [Vol. 66 INTRODUCTION 1276 I. THE PATENT SYSTEM’S ROLE POST-MARKET ENTRY 1281 A. Compulsory Licensing 1282 B. Patent Misuse 1285 II. THE USER AND THE DISSEMINATION OF NEW TECHNOLOGIES 1287 A. The Impact of the User’s Adoption Decision 1287 B. Factors Influencing the User’s Adoption Decision 1290 1. Novelty and User Resistance 1290 2. Perceived Consequences and User Resistance 1292 a. Practical Consequences 1292 b. Impact on Moral and Religious Values 1295 III. THE MARKET GOVERNANCE RULE 1297 A. The Costs of Delay and Nonintervention 1298 B. The Illusion of Market Control 1299 IV. GOVERNMENT ACTION TO ENCOURAGE USER ADOPTION 1301 A. An Institutional Coordinator 1301 B. Gentle Nudges 1303 C. The Moral Utility Objection 1307 V. INSTIGATORS FOR GOVERNMENT ACTION 1309 A. Network Effects: Attaining Critical Mass 1310 B. Urgency 1312 CONCLUSION 1315
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