The Reciprocity of Search
PDF · Tun-Jen Chiang · Jan-28-2013 · 66 Vand. L. Rev. 1 (2013)
The discussion of search in patent law always frames the problem in terms of producers looking for patentees. But search is reciprocal. In designing a patent system, we can have producers look for patentees, or patentees look for producers. Either will result in the ex ante negotiation that is the goal of a property system. The legal rule that produces the most efficient social outcome depends on identifying the party with the lower search cost.
The corollary is that patentees should have the duty of search when they are the lower-cost searcher. For example, if there are thousands of patents covering a product, but only one producer in the industry, then it will likely be more efficient to have patentees find the well-known producer to initiate licensing negotiations, rather than having the producer search for each of thousands of unknown patentees.
The reciprocity of search is a principle that applies not only in patent law, but also to property systems more generally. Future research should therefore consider its implications for other areas of property law such as copyright and the orphan works problem.