Intellectual Property for Market Experimentation

Article Source: GWU Legal Studies Research Paper No. 396; New York University Law Review
Publication Date:
Time to Read: 1 minute read
Written By:



This paper argues intellectual property law should (and does, somewhat) protect the results of market experimentation.


Policy Relevance:

The paper provides some support to doctrines that encourage market experimentation, such as business method patents and less generous treatment of patent trolls.


Key Takeaways:
  • Intellectual property (IP) law encourages innovation in part by protecting investments in the production of created works and goods from copycats.

  • Information about whether new goods or services succeed or fail is not directly protected by patent law, even though the core economic logic of IP law applies just as much to market information as to technological information.

  • The first firm to offer a new product has an advantage in being the first to enter the market. But this might not be enough, since other firms can learn so much about consumer demand by watching the first.

  • Disparate areas of intellectual property law—including especially trademark law and trade secret law—can be justified as helping to augment first-mover advantages.

  • Directly protecting information about new goods and services might increase economic growth by reducing the risks new firms take.

  • This has not happened because trying to create rights in information about new markets would be difficult, given limitations of institutions such as patent offices.



John Duffy

About John Duffy

Professor Duffy joined the University of Virginia law faculty in 2011, after serving on the faculty at George Washington University Law School since 2003, most recently as Oswald Symister Colclough Research Professor of Law. After receiving an undergraduate degree in physics, he served as articles editor on the University of Chicago Law Review and was awarded an Olin Fellowship in Law and Economics. Professor Duffy clerked for Judge Stephen Williams on the U.S. Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia on the U.S.

Michael B. Abramowicz

About Michael B. Abramowicz

Michael B. Abramowicz is the Oppenheim Professor of Law at the George Washington University Law School. Professor Abramowicz specializes in law and economics. He teaches and does research in areas including intellectual property, civil procedure, administrative law, insurance law, and corporate law.

See more with Michael B. Abramowicz