Pursuing patents for their own sake: How the investment discourse shapes patent quality and quantity

Abstract

Patent systems worldwide face criticisms over declining patent quality and increasing patent quantity. While most research focuses on strengthening examination rigour, this article turns attention to relatively underexplored patenting incentives. It examines how the investment discourse, which frames patent law as a means of protecting investment, transforms patenting incentives through two paradoxical mechanisms. First, the investment discourse propertizes patents, transforming them from means fostering innovation into investment assets pursued for their own sake. Second, while attempting to reduce innovation uncertainty, the patent system introduces legal uncertainty that applicants seek to mitigate or exploit. These mechanisms result in the proliferation of low‐quality patents, particularly when patents serve as financing assets, strategic assets, and rent‐seeking assets. Building on this analysis, it makes three contributions. First, it reveals that the incentives embedded in patent law not only induce inventions that would not have occurred absent patent protection, but also the pursuit of patents as ends in themselves. Second, it reveals that quality concerns often disguise concerns regarding investment security. Third, it proposes a moderate fee adjustment to steer patenting incentives away from patent acquisition and toward genuine innovation. Future research should aim to enable reforms that align patenting incentives with the normative objective of patent law.