Patents’ “Self-Consistency” Question: Diversion and Blocking Under a Patent Racing Model

Governments are commonly understood to provide patents for inventions in order to promote scientific and technological progress.But patents can undercut this aim to the extent they interfere with innovative efforts or divert effort into less innovative activities. Relatively low patentability requirements can make such “blocking” and “diversion” concerns especially salient by enabling patents on lower-level innovation to impede or “distract” from investment in higher-level innovation. This essay explores concerns of blocking and diversion using a two-tiered patent-racing model. Under this model, blocking seems generally likely to be the more substantial concern.Under the model, diversion of investment to lower-level innovation occurs under various circumstances but can sometimes be socially beneficial and is often limited in scope.