And yet, there are severe drawbacks to relying exclusively on the utilitarian approach, as I explained in my Against Intellectual Property. We need to have principled, moral reasons that can cut through the fog of inconclusive utilitarian back-and-forth. Case in point is Rosemarie Ziedonis's reply to Bessen & Muerer's On the Apparent Failure of Patents. In her civil and reasonable reply, she argues that Bessen & Muerer provide
little basis for concluding (as the authors assert) that public firms outside the chemical and pharmaceutical industries would be "better off" if patents did not exist. Public firms benefit from the patent system in numerous ways that are not captured by Bessen and Meurer's "net benefits" calculations, including through information revealed during the patenting process and through growth opportunities provided by startups. More generally, the authors are unable to observe the innovative productivity or financial performance of public firms in an alternative, nonpatent regime."
What can a utilitarian say when a critic simply replies, "but there are other benefits you are not capturing"? The strongest counter, it seems to me, is to note that the burden of proof is on the proponent of a utilitarian argument favoring a state regulation, but how do utilitarians ever know if they've taken all costs, and all benefits, into account? That's why a principled, property-rights argument is crucial.
A more complete excerpt of Ziedonis's comments follows:
A second problem with Bessen and Meurer's "better off" assertion is its implicit assumption that the private value firms reap from owning patents is equivalent to the private value those firms derive from the patent system. Here, it is important to understand what was (and was not) included in Bessen and Meurer's statistics. While the authors' "net benefits" calculations allowed public firms to be harmed by patents owned by outsiders through encounters of infringement lawsuits, they did not allow firms to reap benefits from the activities of others. Recall that only the value captured from a firm's own portfolio was captured in the authors' calculations. There are several ways in which public firms reap indirect benefits from the patent system. One is through information revealed during the patenting process (i.e., "spillovers"). In addition to enticing investment through the lure of future profits (the "reward theory" of focal attention in Bessen and Meurer's article), the patent system also aims to foster innovation through the disclosure of information about new inventions (in detailed drawings and descriptions contained in published patent documents) that otherwise might be held secret or be more difficult for outsiders to unravel. ...
Although the evidence generated from Bessen and Meurer's analysis is alarming, it provides little basis for concluding (as the authors assert) that public firms outside the chemical and pharmaceutical industries would be "better off" if patents did not exist. Public firms benefit from the patent system in numerous ways that are not captured by Bessen and Meurer's "net benefits" calculations, including through information revealed during the patenting process and through growth opportunities provided by startups. More generally, the authors are unable to observe the innovative productivity or financial performance of public firms in an alternative, nonpatent regime. Would opportunities to "outsource" R&D to more efficient performers or to profit from entrepreneurial-firm acquisitions be deleteriously affected? It is highly unlikely, of course, that the U.S. patent system will be abolished. Nonetheless, when assessing the current system's performance, these indirect effects of patents are important to consider.
