Coordination-Focused Patent Policy

Stephen Yelderman, Notre Dame Law School


This paper explores the practical consequences of an important shift that has gradually taken place in patent theory. Although it was long agreed that the purpose of granting patents is to reward invention, some scholars now attempt to justify the patent system based on its role in facilitating information exchange and enabling technical coordination among firms. This change in justification is controversial, and its viability remains a fiercely contested question. But despite this intense attention at the level of theory, little has been said about the consequences of this debate for patent policy itself. This Article seeks to fill that void, developing a set of mid-level principles from coordination theory and showing how those principles would likely result in different outcomes for a wide range of policy questions. This analysis suggests that the current debate about the justifications for patenting has significant unappreciated consequences for patent law in practice — and that the terms of that debate have perhaps been based on unfounded assumptions about how a coordination-focused patent system would actually operate.