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How Does the Republic of Science Shape the Patent System? Broadening the Institutional Analysis of Policy Levers for Innovation and Knowledge Disclosure

This paper examines the interactions between the Republic of Science and the Patent System that shape the incentives for innovators and the disclosure of innovations across technical fields. It therefore places our understanding of the patent system and decisions around knowledge disclosure in patents into a broader context, illustrating how policy levers that might modulate patenting in different settings are strongly influenced by the norms governing the system of scientific disclosure through publications. In making this claim we first highlight parallels in the ways the two systems operate: drawing a parallel with Burk and Lemley (2008) we show how the Republic of Science, like the patent system, provides inherent flexibility for innovators in the face of broad overarching rules and norms. With specific examples from science, we draw lessons for those seeking to use policy levers in the Court to allow for greater flexibility in the patent system as it influences varied innovators across sectors and over time. Second we highlight the interactions between the two systems illustrating how policy levers shaping disclosure in the Republic of Science also shape the level of patent disclosure, notions of enablement and invention. Our approach is supported by a theoretical model that evaluates the conditions supporting the disclosure of new knowledge through scientific publication, patenting, or both. It centers on the strategic interaction between researchers and funders bargain over whether (and how) knowledge will be disclosed. We derive the conditions under which the determinants of patent disclosure arise from outside the patent system being grounded in aspects of the Republic of Science. This is illustrated through two in-depth case studies – HIV AIDS virus and human embryonic stem cells. Our approach has implications for policy prescriptions focused on patent policy that ignore science policy levers and makes the case for more integrated analysis and policy evaluation.