Commentators have long recognized that much of the work of commercializing an invention occurs after a patent issues. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short such that a patentee will not develop an invention to the extent that the patentee would if more patent term remained. This concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early in the invention process. While the patent system reduces this risk by requiring a substantial degree of achievement before patenting, underdevelopment may still be a problem for some inventions, and in particular, in the field of genomics. A possible solution is a system of patent extension auctions under which a patentee would always be allowed to request such an auction, but could win it only by substantially outbidding third parties. Under such a system, patentees would call for auctions only when the benefits of ownership continuity, and thus of continued patent development, are relatively high.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-90; GWU Law School Public Law Research Paper No. 2013-90
Michael Abramowicz, The Danger of Underdeveloped Patent Prospects, 92 CORNELL L. REV. 1065 (2007).