UNBUNDLING COPYRIGHT FROM PATENTS TO INFORM THE ANALYSIS OF NOTICE COSTS AND MONOPOLY

The reason that these two fundamental components of intellectual property discourse differ from one another is that copyright, while preventing copying, does not prevent independent creation, whereas patent law prevents both copying and independent creation. Because independent creation is allowed by copyright law, creators have a simple rule for avoiding infringement-do not copy other works.1 This renders notice costs irrelevant for the large class of creative works that do not literally copy any prior works. Patents, on the other hand, although they also provide ownership over the innovation, do have the potential for providing some monopoly power because independent creation is not allowed. [...]an innovation which might have many close substitutes can be limited in the market to only the first entrant to claim a patent, and the resulting monopoly could be due to the patent more than to the uniqueness of the idea behind the original innovation.