Intellectual Property at the Boundary
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Description
There is today no doubt that significant creative work—both commercial and noncommercial—is organized neither by market transactions using legally defined intellectual property nor by top-down task management within firms, but by privately ordered governance regimes. For example, researchers studying user innovation have observed that user innovator communities often share information about their innovations freely with one another, while eschewing reliance on patent protection. These innovation governance regimes are quite different from the atomistic markets and hierarchically organized firms implicitly assumed by standard intellectual property theory. They generally rely on some combination of informal norms (often collectively enforced by reputational rewards and sanctions), more formalized governance mechanisms, and reciprocity (what von Hippel has called know-how trading). In some contexts where such privately ordered innovation governance is observed, formal intellectual property is unavailable either as a matter of law or as a practical matter because of its expense or the time needed to acquire it. Many creative groups, however, apparently including many user innovator communities, actively discourage reliance on formal intellectual property even when it is available. For example, physicians form a user innovator community for medical procedures and methods, and they have maintained ethical strictures against patenting such innovations for over 150 years, despite the fact that such methods are potentially patentable (at least in the United States) and that physicians currently have no such strictures against patenting drugs and medical devices. This chapter is most interested in groups that eschew legally enforced intellectual property despite its availability, relying on private innovation governance regimes instead. As I explain in the first section, there are general reasons to expect that such alternative regimes can be more effective than formal intellectual property at encouraging innovation within some creative groups. The chapter’s main focus is on the boundaries where these alternative innovation regimes butt up against the intellectual property-based market. What occurs in these boundary zones is critical to the stability of the privately ordered innovation governance regimes, to the transfer of socially valuable innovations between creative groups and outsiders, and to the potential for collaboration across these boundaries. But, except in the case of university technology transfer, the boundaries between privately ordered innovation regimes and the intellectual property-based market have yet to receive much attention from researchers. Only recently, for example, has user innovation research begun to focus on user entrepreneurship or on the diffusion of user innovation. This chapter maps out some of the issues that arise at the points where alternative innovation governance regimes meet intellectual property-based markets. The chapter concludes with suggestions for further study of the way in which these boundary interactions affect the overall innovation environment.
Source Publication
Revolutionizing Innovation: Users, Communities, and Open Innovation
Source Editors/Authors
Dietmar Harhoff, Karim R. Lakhani
Publication Date
2016
Recommended Citation
Strandburg, Katherine J., "Intellectual Property at the Boundary" (2016). Faculty Chapters. 1672.
https://gretchen.law.nyu.edu/fac-chapt/1672
