2 --- ENFORCEMENT --- Plan would need to make exclusivity into take-and-pay

What this Article suggests instead is that a better solution is to codify a liability rule to stimulate investment in subpatentable innovation from the outset. Such a regime would defend investors from the risks of forfeiture arising from a system of unbridled and efficient competition, i.e., copying; but it would not reward the innovator with a lengthy period of exclusivity, so much as with a limited form of “take-and-pay” protection under a codified compulsory license. This liability rule would thus make copiers ex post partners in the innovative venture for a specified period of time, as in the manner of a compulsory license. In this case, however, the number of partners subject to de facto compulsory licenses is unlimited in principle from the start. Revenues from a codified liability rule would constitute a market-based reward to the subpatentable innovator, because the more that copiers serve the public interest in access to innovation, the bigger the reward to the subpatentable innovator for the otherwise risky investment in such subpatentable innovation to begin with. Another way to put it is that, while compulsory licenses already exist as a remedy of last resort, this proposal would turn them into an ex ante modality of compensation for innovative contributions.