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Two distinct theories of patents, the “reward theory” and the “contract theory,” are customarily adopted by the courts to justify the patent system. The reward theory maintains that the function of the patent system is to remunerate successful innovators so as to encourage R&D effort. In contrast, the contract theory holds that the function of the patent system is to promote the diffusion of innovative knowledge. Assuming that in the absence of patent protection innovators would rely on trade secrecy, it views patents as a contract between innovators and society whereby a property right is granted in exchange for disclosure. This paper develops an economic analysis of the contract theory of patents. To disentangle the disclosure from the reward motive for granting patents, we assume that the innovation process is entirely serendipitous, so that R&D effort is not a concern. Our main finding is that the disclosure motive alone suffices to justify the grant of patents. The optimal patent duration should strike a balance between the incentive to induce disclosure and the aim of limiting the monopoly distortion induced by patents.

Two distinct theories of patents, the “reward theory” and the “contract theory,” are customarily adopted by the courts to justify the patent system. The reward theory maintains that the function of the patent system is to remunerate successful innovators so as to encourage R&D effort. In the wording of the US Constitution, intellectual property rights are granted in order to “promote the Progress of Science and useful Arts.” This theory—by far the most prominent approach to the economic analysis of patents since the classic work of Nordhaus (1969)—assumes that unpatented innovations are easily imitated, and thus focuses on the “non-exclusive” nature of technological knowledge. In this perspective, in the absence of a patent system, there would be too little investment in R&D.

It is an historical fact that patents grew as alternatives to trade secrets (see, for instance, David, 1993).16 Many of the first patents (privilegi) were granted to people who had not invented the technology at hand, but just ferreted it out from (foreign) trades. 17 In this perspective, they were instrumental to the diffusion of jealously held technology. In this paper we have tried to show that patents may serve a valuable function as alternative to trade secrets. To disentangle the disclosure motive from the traditional reward motive, we have assumed that the innovation is the outcome of “serendipity,” so that stimulating R&D effort is not a concern. In such a framework, it was proved that optimal patent length must strike a balance between the benefit of inducing additional firms to disclose their innovations and the increase in deadweight loss associated with patentees’ monopoly power.