Document Type



Patent law, created in response to a constitutional mandate to encourage innovation, may be discouraging important forms of cooperative innovation. Advances in technology have enabled new ways of pooling knowledge and computational capabilities, facilitating cooperation among many participants with complementary skills and motivations to collectively solve complex problems. But emerging models of cooperative innovation increasingly run into patent roadblocks.

Why might patent law sometimes thwart instead of support socially beneficial cooperative innovation? The problem lies in the tensions between the market-based incentives that patent law creates and the mechanisms that support emerging models of cooperative innovation. The complexity and cost of solving contemporary public challenges are nudging diverse participants together to collectively build their knowledge, but patents often serve to keep them apart. While digital technologies enable new forms of massively distributed, open and collaborative intellectual production, patents threaten the vitality and even the viability of these promising types of innovation.

In this Article I use two examples—the risk of crowding out crowd science and the battle between proprietary software companies and free open source software platforms—to illustrate how patent law in its current form may sometimes impede beneficial cooperation in innovation. I then suggest how we might limit the negative effects of patents in contexts of cooperative innovation without undermining the patent system.