Reward drives innovation. For this reason, Congress has enacted a system of patents, trademarks, and copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests—mandating disclosure of the innovation while legislating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient for innovation, and innovators are relying on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the public’s interest. It is time to reform public ordering to protect the public’s interest while providing sufficient reward to incentivize innovation.
Elizabeth I. Winston, Bargaining for Innovation, 66 VILL. L. REV. 119 (2021).