Gaia Bernstein


Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate and looks instead at the players regulated by the patent system. This Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors but largely ignores a crucial player: the ordinary user.

The user, in his everyday decisions of whether to adopt a technology, plays a critical role in determining whether a new technology will be disseminated. Yet patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated only by price and availability. This Article uncovers the intricacy of ordinary users’ technological adoption decisions. It identifies two principle factors that influence user resistance to new technology: novelty and perceived consequences.

Many believe that the market rule should govern the adoption process of new technologies, that is, the market should decide which technologies society adopts. Yet this rule fails to recognize the variety of factors that influence the ordinary user. This Article proposes that while government action to encourage user adoption should not be the norm, government action that gently nudges the user could prove particularly effective in cases of market failures. In conclusion, this Article suggests two instances in which government action is particularly warranted: first, when market failure occurs because a technology is dependent on network effects and the accumulation of a critical mass of users; second, when there is a critical need to disseminate a technology quickly.