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Abstract

Traditional public choice theory postulates that interest group representation is primarily responsible for the passage of legislation in a variety of areas. Intellectual property scholars have largely embraced public choice theory as accurately explaining the enactment of intellectual property laws, agreeing both that the general assumptions of the public choice model are met and that specific statutes bear the scars of the interest group negotiation process. This Article contends that the reality of legislative enactment in patent law diverges from this conventional wisdom. Drawing on three case studies—the Federal Courts Improvement Act of 1982, the Bayh-Dole Act, and the Hatch-Waxman Act—this Article argues that in actuality, legislative enactments in patent law occur along a spectrum of interest group representation. In this space, laws are often passed where the relevant interest groups are unorganized or even nonexistent. This Article goes on to inductively establish a set of factors that both seek to explain these cases and to distinguish them from copyright statutes, which often adhere quite closely to traditional public choice predictions. Having suggested several factors and identified ways in which they provide testable hypotheses, the Article ultimately considers the implications of the analysis both for those wishing to enact statutes that would alter patent rights and for scholars of public choice theory and intellectual property.

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